The Law of Incapacitated Parties and Estate

Planning an estate or trust on behalf a person who has been deemed an “incapacitated party” by the court, is a complex legal matter. In most states laws, an executor of an estate must be at least 18 years of age, and “of sound mind” not deemed mentally incapacitated by a court (N.Y. Surr. Ct. Proc. Act § § 103, 707.) Executors, guardians, and trustees involved in the formation of a living trust or living will convene, the following checklist summates requirements for representation of a trustee who is an incapacitated party during the estate planning process:

• “Durable Power-of-Attorney” – designation of a representative guardian or trustee for by an “incapacitated party” for purposes of healthcare and financial decision making.
• Healthcare Proxy – the document naming a medical guardian responsible for healthcare decisions, and particularly the diagnosis of “incapacitation” for the person the directive concerns.
• Living Will – advance directive citing a person’s wishes concerning life-sustaining medical treatment, and payment for those healthcare measures should permanent incapacitation or unconsciousness interfere with informed consent decision.
• Trust Plan – the financial plan protecting the assets and rights of beneficiaries, the trust agreement outlines guidelines for administration and distribution of assets; thus preventing lengthy probate court proceeding when the estate becomes effective.
• Written Will – the document articulating executor or trustee guardianship in the representation of the decedent’s decedents wishes, including distribution to designated beneficiaries.