Dealing with Incapacity

This is the first article in a series that will focus on identifying issues related to incapacitation and offering practical guidance and solutions. I encourage your participation by sending me your stories of how you dealt with the incapacity of a loved one, or with your own incapacity. You can email me at


I was speaking with a client recently (I will call her Martha), and she recounted the following story: Shortly after returning from a six-week trip, she had a stomach ache. She took some Tylenol, but the pain grew steadily. She lived alone and considered driving herself to urgent care, but thought that would be a silly thing to do for a stomach ache. Still, the pain increased. Convinced now that she needed help, she decided to get up and go to urgent care. She tried to stand up, but collapsed in pain. She called 911.
Although Martha had prepared a medical power of attorney (POA), she was unable to dig it out of her files before she left the house (after all, it was a 911 situation), and it was not available to the doctors at urgent care. Her son, who has POA powers, lives in Switzerland and was unavailable. While under strong pain medication at urgent care, Martha did not recognize that her capacity to make important decisions was compromised. After several hours she told the doctors she was feeling well enough to go home. When she stood up to leave, however, again she collapsed in pain. Only then did she agree that it was time to check in to the hospital.
Throughout this ordeal, Martha’s doctors obeyed her decisions because she was coherent enough to carry on a conversation. For example, she would not allow the doctors to perform exploratory surgery to check for a life-threatening intestinal blockage. She now readily admits that she had put her life in danger; in hindsight, see sees that her decisions were not very good.
This story, and others like it, prompted us to take a harder look at how incapacity affects our clients, their loved ones, and our business. Chances are, you may have dealt with this issue while caring for a family member, or you have witnessed how a family member had to deal with incapacity as a caregiver.

So What is Incapacity?

Generally, incapacity means you cannot make decisions for yourself, or your decision-making ability is compromised. It can be transitory or permanent, and it presents itself on a spectrum. Its onset may be clear (you were injured in an accident) or it can occur gradually with age or disease. In the latter case, it can be hard to say when, precisely, judgment is compromised. Each state has its own definition of incapacity.
When you are close to someone and see them regularly, such as a spouse or a parent who lives with you, it is easier to spot diminishing capacity. Perhaps you notice that Mom or a favorite aunt has difficulty doing things that were once easy, like making change at the store, or she gets frustrated when trying to balance the checkbook. Or perhaps Dad is forgetting to take his medication or is becoming easily upset.
As for Martha, her story is not unusual. Fortunately, she received the treatment she needed and has since recovered. After Martha got home, she asked me, “What could I have done differently that would have led to a better outcome?” We identified a cost-effective national service that will communicate her medical information (including her current prescriptions) to first responders, store her advanced directive and medical POA, and notify family members when she is being treated by emergency responders. Contact me if you would like to know more about this solution.
As a firm, one way we are responding to the issue of capacity is by mailing our clients an emergency contact form. We will ask clients to identify two or three people whom we can contact when we believe that a client may not be acting in his or her own best interest, or if we cannot get in touch with our client with important information.
Next newsletter, I will write about the dangers of financial incapacity as it applies to elder financial abuse, how to recognize potential signs of abuse, and what you can do to protect yourself or your loved ones.