A good estate plan gives you the ability to make important decisions that only you can make, as well as giving you the ability to give others the legal authority to make some of your decisions if you are no longer able to do so. When you create powers of attorney or medical directives, you give others the right to step into your shoes and make legal choices on your behalf when you are incapacitated.
But what does being incapacitated in Florida mean? Apart from your ability to create powers of attorney, medical directives, or trusts that can protect you when you are incapacitated, how will someone know that you have lost your capacity? While this question doesn’t have a single answer that applies across the board, there are some principles you will want to understand before you begin making an incapacity plan.
The term “incapacitated” is legally defined in the Florida probate code. Florida Statutes section 731.201 (21) defines an incapacitated person as anyone who is either a minor or who has been determined by the court to lack the ability to manage property or meet his or her own health and safety requirements.
This essentially means that an incapacitated person is someone who cannot care for him or herself. It also means that you aren’t incapacitated until a court makes a determination that you have lost the ability to look after yourself.
It’s also important to note that all minors (children) are automatically considered incapacitated in Florida. This means that children don’t have the legal ability to make their own choices and must have either a parent or guardian make certain choices for them. It also means that they are not allowed to own property. If they receive property, such as through an inheritance, the children must have someone else manage that property for them until they become adults.
Because the legal definition of incapacity requires a court to determine that someone has lost the ability to care for his or her needs, the practicalities of creating a power of attorney become apparent.
If you fail, for example, to create a power of attorney before you lose the ability to care for yourself and a court steps in to appoint a guardian to make your decisions on your behalf, you lose the ability to create an incapacity plan.
Because of this, it’s important to make such a plan as soon as possible. You can choose whom you wish to make decisions for you while you are able, but if you wait until it is too late you will leave it to a Florida court to appoint someone.