"Incapacity" in a Will or Trust

In the context of trusts and wills, the term incapacity refers to a person's legal or mental inability to manage their affairs due to illness, injury, or cognitive decline. This concept is crucial in estate planning, as it determines when a successor trustee or an appointed agent under a durable power of attorney can take over financial or personal decisions on behalf of the individual.

Wills generally take effect upon death, so incapacity does not directly impact their execution. However, if a person becomes incapacitated before passing, they may be unable to update or revoke their will. In contrast, incapacity is highly relevant to revocable living trusts, which allow a successor trustee to manage assets when the grantor is deemed incapacitated. The trust document often specifies how incapacity is determined—typically through a physician’s certification or a formal legal declaration.

To avoid disputes, well-drafted estate plans clearly define incapacity and outline procedures for determining when a person can no longer manage their own affairs. This ensures a smooth transition of control while protecting the individual’s interests and assets.

If you have concerns about someone taking control of your affairs before you are ready to have supported decision-making, we suggest you review your Trust with your attorney to better understand how incapacity is determined.

Contact Mary Frances Price, Susie King, Kelsey Scanlan or another attorney from our Trusts and Estates team to learn more!