When an older loved one struggles to care for themself, you may question who will help them make decisions. In this case, it’s essential to understand the legal meaning of the word “incapacitation” and find answers for a loved one needing a guardian. You may also want to plan ahead for possible incapacitation in your own life by appointing a power of attorney agent.
In the 1970s, courts declared individuals “imbeciles” or “idiots” and appointed guardians to make all decisions on their behalf – resulting in a complete loss of rights for that individual.
However, today’s legal language has evolved to include terms such as ‘incapacitated’ or “incompetent.” So what does this mean for you and your loved ones? And how can you avoid a court using this label to take control of your life?
Incapacitation Meaning in North Carolina
In the past, once you received a label declaring you unfit to make decisions for yourself, you lost all rights, and the court appointed a guardian to make all decisions for you!
However, According to the UNC School of Government blog, legal meanings now work differently than in the 1970s.
“Capacity” and “incapacity” generally are seen to be the two ends of a continuum that includes varying degrees of capacity and incapacity rather than a clearly-differentiated dichotomy—concepts that are more “gray” than “black or white.” As a result, many state guardianship laws expressly or implicitly incorporate the concepts of “partial incapacity” and “limited guardianship” into their definitions of “incapacity” or “incompetency.”
The UNC blog continues to elaborate on incapacitation meaning in our world these days:
“Today, most state adult guardianship laws define “incapacity” or “incompetency” through a
combination of two or more of the following components:
- Medical component: requires that the respondent’s incapacity by a diagnosed medical condition or identified mental or physical impairment, such as mental illness, developmental disability, or chronic intoxication;
- Functional component: requires that the respondent’s incapacity limits their ability to manage their own affairs or property or to care for their essential personal needs such as medical care, food, clothing, shelter, and safety;
- Cognitive component: requires that the respondent’s incapacity involve a mental or physical condition that limits their ability to make or communicate “rational” decisions;
- Necessity component: that requires that the respondent’s incapacity endanger the respondent’s person or property to such an extent that appointment of a guardian, as opposed to some other “less restrictive” alternative, is necessary and in the respondent’s best interest.
Partially or Completely Incapacitated in North Carolina
As an adult in our state, there are many ways you can become partially “incompetent” or “incapacitated.” These terms are synonyms and essentially mean the same thing in NC law; you are incapable of making decisions for yourself in one or more areas. Incapacitating events happen to individuals all the time.
Many people find themselves in need of someone to make decisions for them. Many events can incapacitate a person, including:
- Sicknesses such as Alzheimer’s or other types of dementia
- Traumatic injuries, including accidents causing brain injuries
- Drugs, whether prescription or an overdose of an illegal drug
- Alcohol-induced aspiration, causing coma and loss of function
When an event does incapacitate you, it takes away your ability to perform daily tasks and renders you unable to act appropriately to care for yourself. This is when someone may petition for an incompetence hearing.
At the hearing, a judge determines whether you or a loved one is incompetent or incapacitated.
Anyone can face incapacitation and become unable to use words to make their wishes known. When an accident or illness incapacitates a person to the point where they cannot consent to medical care or other care, a loved one or family member can petition for an incompetence hearing.
If the judge deems someone’s lost decision-making abilities, they will deprive the person of some or all of their rights and appoint a guardian. The type of guardian depends on the individual’s abilities in different areas. However, a person deemed incompetent or incapacitated will lose some of their rights, if not all of them.
Types of Guardians in NC
Based upon the abilities and needs or lack of abilities, a Court may appoint one of the following guardianships.
- Guardian of the Person – authority over the personal care, residential, and medical decisions. Think of this as power over everything except finances.
- Guardian of the Estate – authority over finances, but not personal care, residential, or medical decisions.
- General Guardian – has combined power of “Guardian of the Person” and “Guardian of the Estate.” Also has general authority over all aspects of the person’s affairs except those prohibited by law. They also may not make decisions that require court approval in advance, such as sterilization procedures or selling real estate.
- Limited Guardian – Specified authority over a person, possibly limited to certain facets of the person’s affairs, such as just medical decisions or only residential decisions. A limited guardianship is a court order customized to the individual’s specific needs and limitations.
Guardians must, by law, act in the best interest of the person they are responsible for. They must meet court-ordered paperwork standards and account for every detail of what they do.
Avoiding a Court-Ordered Guardianship in NC
The basic principle behind powers of attorney is allowing another individual to act on your behalf. This person is your “POA,” “agent,” or “attorney-in-fact.” Your agent can act as if they are you when making decisions, but only to the extent you permit them.
Your power of attorney document in NC defines what your agent can make decisions for you about. It also states how long they can make these decisions for you. Drawing up a POA document allows someone else the power to make decisions for you without court interference.
A Durable General Power of Attorney is the most comprehensive POA available. It gives your agent the authority to make decisions about your finances and health care even if you face incompetence or incapacitation (without a need for court interference).
Your agent has authority for any situation where you need help making decisions- even if you find yourself incapacitated in a coma or diagnosed with dementia. And there is no need to go through a public court hearing where your family or loved ones stand on the opposite side of the courtroom trying to prove you “incompetent!”
Power to Choose If You Can No Longer Make Decisions
With Power of Attorney documents, you may express your wishes for care if you cannot make decisions for yourself. POAs are an essential planning tool that can ensure others carry out your wishes even if you cannot communicate them.
For example, if you suffer injury in a car accident and find yourself incapacitated, a court could get involved in naming a guardian for you.
However, with a Durable General POA, you’ve already chosen a care person for yourself. There would be no need for a court’s involvement.
It is too late to draw up a power of attorney naming someone you trust to make decisions after you find yourself incapacitated. At that point, a court would need to appoint a guardian and would have no way of knowing your wishes.
We Can Help
If you need to prove a loved one incapacitated or incompetent, Hopler, Wilms, and Hanna elder law attorneys can walk you through an incompetence hearing and also represent you as the court names a guardian. We also represent older adults who want to fight for their rights in court and refuse a guardian.
Our elder law attorneys can also help you plan for the future, by giving power of attorney to a loved one. By doing so, you have the power to choose who will make decisions on your behalf- and prevent a court from stepping in. Contact us today to create a POA document that protects your wishes before it is too late. We can help ensure you have the legal authority to manage who will care for you in the event of an incapacitating event.
Whether you need help planning for your future or helping a loved one who needs a guardianship, our elder law attorneys stand ready to ensure that you and your loved ones remain safe and cared for. Get in touch today to start making plans.