No one wants to consider a future where a tragic accident or illness takes away their decision-making ability, but the reality is that it happens to individuals across America every single day. None of us know what tomorrow will bring, which is why it is so crucial to be prepared, no matter what. Through carefully crafted legal documents, you can designate trusted individuals to act on your behalf if you become unable to make your own financial, medical, and legal decisions.
These proactive measures are known as incapacity planning, and they ensure that your personal wishes will still be honored, even if you become unable to communicate them yourself. By providing clear instructions ahead of time that align with your principles, you can reduce the pain it would likely cause to your family to have to guess about what you would have wanted, then agonize over whether they made the right decision later on.
In this blog, we will break down everything you need to know about incapacity planning in California, including how and why it’s done and a few of the common mistakes you should try to avoid!
Understanding Incapacity
There are many different ways to approach the idea of what it means for a person to be incapacitated. The dictionary will tell you that to be incapacitated means to be made incapable or unfit for normal functioning. However, the law must be clear about what it means to be incapacitated. In California, Probate Code Section 810-813 deals with the legal definition of incapacitation, as well as how that conclusion is made. Here is a basic summary of these laws:
General Principles (Section 810)
- Everyone is assumed to have the capacity to make decisions and be responsible for their actions by default
- Having a mental or physical disorder does not automatically mean someone is incapable of making decisions
- If the court determines that a person lacks decision-making ability, it should be based on evidence of a mental function deficit, not simply a diagnosis
Specific Determinations (Section 811)
- To declare someone is incapacitated, there must be evidence of deficits in specific mental functions, such as alertness, attention, information processing, thought processes, and mood regulation
- These deficits must significantly impair the person’s understanding of the consequences of their actions
- As already stated, a diagnosis isn’t enough to determine incapacity – rather the court should consider the frequency, severity, and duration of impairments
Making Decisions (Section 812)
- A person is considered unable to make a decision if they can’t communicate their decision or understand the relevant rights, responsibilities, consequences, risks, benefits, and alternatives
Informed Consent For Medical Treatment (Section 813)
- A person can give informed consent if they (1) respond knowingly to questions about the treatment, (2) participate in the decision rationally, and (3) understand the illness, the recommended treatment, its benefits and risks, and alternatives
- If someone can give informed consent, they can also refuse treatment
Key Components Of Incapacity Planning
Durable Power Of Attorney
There are many different types of power of attorney, but having durable power of attorney ensures that the document stays in effect if you become incapacitated. With this legal tool, you essentially give another person (usually a close relative whom you trust inherently) the authority to act in your place if you become unable to make decisions. It’s recommended to have two separate durable documents: one for medical matters and one that deals specifically with your finances.
Medical durable power of attorney (sometimes called durable power of attorney for health care) is a type of advance health care directive in which you appoint an individual (who might be referred to as your “agent,” “attorney-in-fact,” “health care proxy,” “health care surrogate,” or something similar) who will work with doctors and other medical professional to ensure you get the kind of medical care you wish to receive. Your agent is legally bound to follow your treatment preferences to the extent that they are aware of them.
Financial power of attorney gives your agent authority over your finances, so they might handle such tasks as sorting through your mail, depositing checks into your bank account, handling your retirement account or other investments, or filing your tax returns.
Living Will
Another type of advance health care directive is a living will, which is vastly different from a traditional (testamentary) will. This document spells out the medical treatment you would and would not want to be used to keep you alive, as well as your wishes for other medical decisions such as pain management or organ donation.
There are a number of potential end-of-life care and treatment decisions you can address in your living will, including:
- CPR (whether you want to be resuscitated if your heart stops)
- Mechanical ventilation
- Tube feeding
- Dialysis
- Antibiotics or antiviral medications
- Palliative care
- Organ and tissue donations
- Donating your body
- And more.
Living wills are incredibly personal and allow you to remain in control of your bodily autonomy, as well as preserve your dignity. You should take ample time to consider your true values and principles, as well as have open discussion with those closest to you about your living will so that they aren’t blindsided if it ever needs to be used.
Common Mistakes To Avoid
- Not reviewing and updating your plan regularly. As life goes on, every single one of us is likely to change in some way or another. People float in and out of our lives, our opinions shift, and our priorities evolve. Your perspective and wishes are likely to change at some point, so it’s important to regularly review and update your incapacity plan to ensure it accurately reflects your true intentions.
- Waiting too long to plan. Plans like these are always better to have and not need, than to need and not have. By putting it off for another day, you are taking the chance that you won’t have a need for it. Take it from us – planning early is always best!
- Not communicating your wishes with your family. We’ve already touched on this briefly, but not informing your loved ones of your wishes could leave them blindsided in the event of a tragedy. Although it may be difficult to discuss things like this with those you love most, it’s important that they are aware of what you’ve chosen. Additionally, it’s critical that everyone understands their roles and responsibilities, especially those you’ve chosen as your agents.
Ready To Take The Next Steps? Contact The Hayes Law Firm Today To Learn More!
Incapacity planning is a difficult experience, but we strive to ensure yours is as comfortable as possible. No one wants to think about a tragedy striking their family, especially if they are the victim, but the benefits of having a plan far outweigh the consequences your loved ones might face in the absence of one. Our lead attorney, William Hayes, will take the time to answer your questions and get a clear understanding of your wishes. Call today to book your free consultation and learn more about how we can serve you!
- Estate Planning for Parents of Special Needs Children: Protecting Your Child’s Future and Benefits - November 20, 2025
- “My Family Will Figure It Out” and Other Dangerous Estate Planning Excuses That Don’t Hold Up - October 17, 2025
- Charitable Giving Through Your Estate Plan: How to Leave a Legacy Beyond Your Family - September 25, 2025
Office hours
Map
The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. The information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.