Fayetteville Arkansas Incapacity Planning

With Dementia as the number one cause of disability around the world, according to the World Health Organization and stroke, which can also profoundly impair judgment and decision making, at number two, we all need to consider who will manage our assets and our care if we become incapacitated.  With a proper incapacity plan, you can decide who that person will be now, before it’s too late.

What is incapacity?

In estate planning, the term “capacity” refers to someone’s ability to make important decisions and manage his or her own affairs.  There are many different circumstances that can unfortunately lead to incapacity, and sometimes those circumstances are only temporary.  Either way, you should have a plan as to how your affairs will be handled if it happens to you.

How is incapacity defined in Arkansas?

Each state’s lawmakers have determined the definition of “incapacity” that will be applied in that state.  When a legal determination is required, it is the court that makes that decision.  If an individual is declared totally incapacitated, he or she will lose the right to make decisions regarding their own personal welfare and finances.  This includes decisions pertaining to healthcare and living arrangements.  On the other hand, a finding of only partial incapacity means the individual may retain the ability to make certain decisions.

Fayetteville Arkansas Incapacity Planning: What does it include?

Each person’s situation is different, so a one size plan does not fit all.  There are various incapacity planning tools that can be used depending on the needs of the client.  Some common examples are guardianships, powers of attorney, living wills, and advanced medical directives.  Discussing your options with an experienced Fayetteville Arkansas incapacity planning attorney in will help you decide which elements will best fit your needs.


If your loved one has become mentally impaired, he or she may start to show signs, such as becoming increasingly forgetful or disoriented.  In some cases, that person’s needs can be met through informal methods by family or friends.  Although this would likely be the preferred solution, sometimes more formal control is necessary.  A guardianship can be a rather costly process and it is open to the public, which may be embarrassing. More importantly, though, is the fact that a guardianship leads to complete loss of autonomy over many important aspects of the ward’s life. There are less restrictive and more cost effective alternatives that can be considered.

Power of Attorney

While guardianship may be necessary for some, another option is to execute a durable power of attorney for health care, finances or property.  A power of attorney is not as complicated a process as guardianship and is usually much less expensive.  Most importantly, the individual is able to choose the agent, rather than having a guardian appointed by the court.

Advanced Medical Directives

The term “advanced medical directive” is used to describe the combination of two important documents: a Durable Power of Attorney for Health Care and a Living Will.  These two important legal documents work together to determine and direct your health care should you become incapacitated.  A Durable Power of Attorney identifies the person you want to have the authority to make all of your health care decisions should you be unable to do so.  A Living Will sets out, as specifically as you choose, the type of medical treatment and procedures you want your physicians and health care providers to use to keep you alive, etc.

With these written instructions, you will relieve some of the stress your family will no doubt experience if you are incapacitated.  It is better for you and your family to make these plans now before you need them.  If you never need them, all the better.  But be proactive and create your own plan to make your wishes known.

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