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Planning for Incapacity

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When most people think of estate planning, they think of what happens on their death. However, estate planning also includes what happens while you are still alive but unable to make financial or healthcare decisions. Incapacity can mean that you would need someone to pay your bills, file your taxes, attend appointments with you, etc.

What is Incapacity?

Incapacity refers to any period in which an individual is physically or mentally unable to manage their own affairs. A person must be incapacitated in order for a guardian or conservator to be appointed by the court to manage their affairs. This is different from testamentary capacity, which is the cognitive ability required to execute a valid will.

Testamentary capacity requires the testator (the person signing the will) to understand and connect three things: the nature and extent of their property, their heirs (what the law calls “the natural objects of your bounty”) and how their will is distributing their property.

Financial Power of Attorney

A financial power of attorney allows someone to pay your bills, file your taxes and manage your finances in general. If you are incapacitated and do not have a financial power of attorney, these tasks probably could not be completed without someone being appointed your conservator by the court.

The financial power of attorney can be springing or surviving. Springing means that it only becomes effective upon your incapacity. This typically requires a determination of your inability to manage your affairs by at least one physician. In Arizona, it is becoming increasingly difficult to have access to a physician, so it may be a good idea to allow other medical professionals to make the determination. Surviving means that the power of attorney is immediately effective and remains effective during your incapacity. We typically recommend making your financial power of attorney immediately effective. Requiring a doctor’s report will delay your agents ability to assist you in an emergency.  The person you name as your agent should be someone you trust.

If most of your assets are titled to a revocable trust, then the person you name as your successor trustee is more important. The agent named on your financial power of attorney will have no access to assets titled to a trust.

Healthcare Power of Attorney

A healthcare power of attorney allows someone to make medical decisions on your behalf only when you are unable to do so yourself. If you are incapacitated and do not have a healthcare power of attorney, someone would probably need to be appointed your guardian by the court in order to make decisions for you.

Your healthcare power of attorney can include provisions granting mental health powers to your agent. Your agent will probably not be able to make decisions regarding your mental health, such as admitting you into a behavioral facility, without these powers. This is a good idea to prevent the need for a guardianship solely for the purpose of gaining mental health authority. It is not necessary to have a separate “mental healthcare power of attorney.” You can just include mental health powers in your healthcare power of attorney. If you are hesitant about granting this power to your agent, you should know that a doctor’s recommendation would still be required before you are admitted into a locked facility. It would be in your best interest to be admitted if you become a danger to yourself or others.

Does your will help plan for incapacity?

You really should have a will. But it doesn’t speak to your possible future incapacity. Necessarily, your will only becomes meaningful after your death.

But you could create a living trust. You can make it revocable and amendable. And you can transfer most (or, ideally, all) of your assets into the trust’s name. Then the trust becomes a useful tool for incapacity planning, too.

Our bottom line: If you have testamentary capacity, you should make sure your powers of attorney adequately plan for your incapacity. If you have a trust, it can also help plan for incapacity. While powers of attorney can allow someone to make decisions for you, they do not restrict your ability to make decisions yourself. A trust can and should be a tool to provide additional protection against a conservatorship.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.