Do I need to update my estate plan because my spouse has become incapacitated?

Texarkana Elder Law Attorney Explains the Benefits of Updating Your Estate Plan

A single phone call from a doctor can be life-changing. If you or a spouse has recently been diagnosed with a disabling and potentially incapacitating condition, planning for the future might now seem like an exercise in frustration and futility. 

However, you don’t have to accept uncertainty in place of action. Ross & Shoalmire, P.L.L.C., has spent years helping families throughout Texas and Arkansas overcome obstacles to protect their family’s future. We explain why incapacity planning could help you protect your rights and preserve your spouse’s health. 

Understanding “Sound Mind” Estate Planning 

Most adults are entitled to make informed decisions about their estate, wealth, and physical well-being.

Although the requirements to write a will or establish a revocable living trust vary, testators must typically meet a baseline of mental competency to begin forming an estate plan. In other words, they must “be of sound mind.” 

A person who is of sound mind is presumed to have the legal capacity necessary to enter into different types of contracts and agreements. With few exceptions, adult residents of Texas and Arkansas are presumed to be “of sound mind.” 

However, certain circumstances and medical conditions could cause a court to question an individual’s legal capacity. If, for example, a person is seriously injured or suffering from irreversible cognitive decline, they may not be able to understand how signing a binding document affects their interests and rights. People who are not of sound mind, or who are otherwise incapable of providing informed consent, don’t have the legal capacity and could be considered incapacitated. 

Most Common Reasons for Legal Incapacity

Anyone, regardless of their age or mental state, could be found incapacitated if they’re no longer capable of making independent decisions. The most common reasons for a determination of incapacity include, but are not limited to, the following. 

Physical Injuries

Accident victims, especially those who suffer severe injuries, may temporarily or permanently lose legal capacity. If they have serious brain damage, are on life support, or are otherwise non-communicative, they cannot consent to treatment or convey their preference to doctors. 

Physical Disabilities

A physical disability is any condition that impairs or substantially limits an individual’s ability to perform basic physical activities, from walking to climbing the stairs and lifting light objects. Although many people with physical disabilities are of sound mind, some conditions—like cerebral palsy, and acquired brain injury—are legally incapacitating. 

Intellectual Disabilities 

These are defined as a condition that affects a person’s acquisition of age-appropriate knowledge and skills. Intellectual disabilities include:

• Autism spectrum disorder
• Down syndrome 
• Fetal alcohol syndrome 

Some intellectual disabilities have profound consequences, requiring life-long care and support. 

Cognitive Decline

Cognitive decline can affect anyone of any age but is most common in older adults and people with certain substance abuse-related disorders. Causes of cognitive decline include:

• Dementia
• Alzheimer’s disease 
• Parkinson’s disease 

A person diagnosed with a condition causing cognitive decline doesn’t necessarily or immediately become incapacitated. Instead, their condition and symptoms must progress to a point whereafter they can no longer make independent decisions about their well-being. 

Risks of an Unamended Estate 

You should always review your estate plan after any significant life event, from marriage and divorce to unexpected deaths and other changes in circumstances. Any failure or delay in updating an estate plan may cause complications, whether in seeking care for an injured relative or executing a will in probate. 

A spouse’s apparent physical or cognitive decline makes routine decision-making all the more difficult—especially if they own separate assets, or retain individual accounts and insurance policies. Unless you’re already authorized to act on your partner’s behalf, many companies refuse to divulge client-specific information without a court order. 

You might struggle to: 

• Manage or close an account listed in your spouse’s name.
• Make medical decisions on your spouse’s behalf.  
• Apply for critical benefits for an incapacitated spouse who needs expensive medical care or has to be transferred to an assisted living facility. 

Although incapacity doesn’t necessarily sabotage an estate plan, you may have to take different steps depending on the stage and severity of your partner’s condition. 

Options for Estate Planning After a Spouse is Incapacitated

Incapacity planning is typically a proactive process, with both spouses working together to create an estate plan before one partner loses their legal capacity to consent to different arrangements.

Although simply being injured or receiving a diagnosis of a condition like Alzheimer’s disease or dementia doesn’t immediately preclude a person from being “of sound mind,” time is of the essence. You could work with Ross & Shoalmire, P.L.L.C. and proactively protect yourself and your family by: 

• Establishing and configuring the durable power of attorney. 
• Writing and signing an advance care directive to convey your spouse’s wishes regarding medical care. 
• Founding a revocable living trust, a special needs trust, or a state-specific Medicaid trust to preserve benefits eligibility while still providing funds for your spouse’s maintenance and welfare. 

In cases where a partner’s health has already deteriorated to the point that they can no longer plausibly assert legal capacity, their spouse may be able to move the court to approve a guardianship—a special type of legal arrangement that lets an appointed guardian act on their ward’s behalf and in their best interests.