Simply put, a person is incapacitated when he/she is mentally or physically unable to make decision for himself/herself.
Virginia law defines incapacitation as: an adult who has been found by a court to … lack the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.
What’s important to understand especially with elderly individuals that are dealing with a sickness is that there is a certain point legally when they are unable to make decisions for themselves. This could impact a real estate deal if the individual is needing to sign closing documents. It could impact a business deal if the individual has ownership in the business. It can also impact beneficiaries and loved ones if the individual does not have an estate plan in place. The easiest way to prevent this issue is to get a durable general power of attorney in place sooner rather than later. The individual must be competent to sign a power of attorney in front of a notary. Powers of attorney can be used for all sorts of matters such as selling a home, conducting business affairs, and opening accounts, etc.
If a power of attorney is not in place when an individual becomes incapacitated, a court order is required to establish guardianship and/or a conservatorship. The court-appointed Guardian would then have the legal authority to sign for the incapacitated individual. This can take several weeks or months (if the matter is not contested) in addition to the petitioner incurring legal fees.
It’s extremely important to have a power of attorney in place for loved ones to be able to take care of these important matters rather than seeking court approval.
If you or someone you know needs further assistance with wills, trusts or estate law in Virginia, please click the “Schedule a Consult” link above and a receptionist will assist in connecting you with an wills, trusts, and estate attorney. Hanger Law serves the following cities and counties in the greater Hampton Roads and Richmond areas: Virginia Beach, Chesapeake, Norfolk, Portsmouth, Suffolk, Hampton, Newport News, Yorktown, Seaford, Poquoson, Williamsburg, James City County, Isle of Wight County, Smithfield, New Kent County, Toano, Gloucester, Hayes, Richmond, Henrico County, Mechanicsville, Ashland, Hanover, Midlothian, and Chesterfield County.
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