A Closer Look at Many of the Essential Concepts
that Surround the Important Question of What Will
Happen to Us, and Our Families, Should We One
Day Become Incapacitated
RAYMOND J GERMAN
NORTH DAKOTA ESTATE PLANNING ATTORNEY
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Estate planning is one of those areas of the law that often requires people to ask
themselves some difficult questions. Many of these questions surround our
mortality, and require us to look ahead to the future and consider what will, and
might, happen to us.
When we look to the future we must consider the possibility that we might lose the
capabilities we have today, and might do so with little or no warning. Today we are
going to take a closer look at many of the essential concepts that surround the
important question of what will happen to us, and our families, should we one day
CAPACITY AND INCAPACITY
In order to create an incapacity plan,
we first have to understand what
capacity means. In the law, the idea
of capacity is essential whenever
someone wants to make a decision.
Most of us take for granted that we
have the legal authority to make
decisions that govern our day-to-day
lives. Where do you want to live? What do you want to eat for dinner? How do you
wish to invest your money? What kind of education do you want your children to
The ability to make these decisions rests upon the assumption that you are a
mentally capable person. The law presumes that adults are capable of thinking for
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themselves, and are capable of making reasonable choices. This is known as
However, capacity isn’t something that everyone has. For example, a child is not
legally capable of making most choices. Adults who have learning or cognitive
disabilities might also not be legally capable of making their own decisions.
Further, even once capable adults can lose the ability to make choices if certain
events take place. Once you lose capacity, you can no longer make those
day-to-day decisions that govern your life. Instead, other people will have to step
in to make those decisions for you.
CAUSES OF INCAPACITATION
There are a number of ways people can lose their ability to make choices. Most
commonly, however, incapacitation arises because of one of two events.
First, there is the unexpected event that robs you of your ability to think or
German Law Group Incapacity Planning in North Dakota (Part 1) 4
communicate. Serious injuries that result from
automobile crashes, medical complications,
adverse drug reactions, and other similar
situations can rob you of your ability to make
decisions or express them, as can various types
of illnesses or diseases. In some situations, drug
addictions and mental illness can also result in
Second, there is the natural decline in abilities
that accompanies the aging process. Even the
healthiest of adults will experience some decline
in physical and cognitive abilities as they get
older. This decline in abilities is often
exacerbated as people reach senior citizen status.
It also exacerbated by the fact that a variety of
illnesses typically only affect people as they get
older. For example, Alzheimer’s disease and
dementia commonly only affect people over the
age of 55.
There are several important issues you should
note when you think about the causes of
incapacitation. First, anyone can be
incapacitated at any time. We have no way of
knowing what the future holds, and cannot
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predict when some event might rob us of our ability to choose. Second, even
though younger people are much less likely to become incapacitated, it is still a
possibility for which responsible people must be prepared. Developing a plan that
addresses the possibility that you lose your ability to choose or communicate is
essential if you want to protect yourself and your family.
If incapacity is the loss of ability to make decisions, then what is incapacity
planning? Essentially, an incapacity plan is a collection of tools that give you the
ability to make choices now, while you are still capable, that will control what
happens to you should you become incapacitated.
Incapacity plans can rely on several different types of tools, but these basically boil
down into two key types: tools that address your financial needs, and tools that
address your medical needs.
What happens to your bills if you are involved in an accident? Who will manage
your property, look after your farm, or manage your family business? These types
of financial and practical questions lie at the heart of every incapacity plan. When
you create your plan, you will be able to choose representatives who can step in
when needed and manage your affairs on your behalf, as well as choose how you
want them to act.
Beyond financial and practical concerns, there’s also the question of medical and
health care decisions. Your incapacity plan will allow you to name medical
representatives, and will also allow you to make health care decisions that you
want your doctors to abide by should you lose your ability to tell them yourself.
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ADVICE AND GUIDANCE
Now that you know little more about
incapacity and incapacity plans, our
next discussion will go into more depth
about the specific types of tools you will
likely use one you create an incapacity
plan in Minnesota or North Dakota.
While state and federal laws control
what types of documents you can
create, and what those documents need to contain, you have a number of options
when it comes to developing a plan. You will have to make some potentially
difficult decisions, but when you do, you must make sure that you make those
decisions in a legally enforceable manner.
German Law Group has a lot of experience counseling our clients on the creation
of incapacity plans that address their unique circumstances. No one can tell you
what choices you have to make, but we can help you make sure that your choices
will be protected when the time comes. If you haven’t begun incapacity planning,
you should contact our office as soon as possible so we can begin the process.
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About the Author
Raymond J. German
As an attorney in Minnesota and North Dakota, Raymond J.
German provides a wide range of estate planning and title
services to his clients, with a primary focus on helping them
provide for the security of their loved ones, reduce estate
taxes and avoid or at least minimize the costs and delays of
probate, all with a well-crafted estate plan. Mr. German
defines the mission statement for Raymond J. German, LTD.
Law Firm as "Helping one family at a time pass on values,
beliefs and finances, that can be shared for generations to come." Mr. German is
well aware of the growing importance of estate planning and dedicates himself to
informing the public of the need for careful attention to their specific situations. He
is a frequent speaker on a variety of estate planning topics, regularly presenting
educational seminars for the public as well as private groups.
Raymond J. German approaches each challenge with not just solid expertise, but
also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and
more effective ways of doing things, he continues to make a real difference in the
lives of families and on the way estate planning is practiced by attorneys around
German Law Group, PC
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