The first step is to determine their “capacity,” which means someone fully understands the decisions they are going to make. When you come into our office, if there is a concern about capacity we will ask you to contact their physician and ask for a statement from them on your loved one’s ability to make these decisions. If it is determined that your loved one has capacity, then we would need to ensure that there is an incapacity plan in place to preserve the ability to do future planning with the use of Powers of Attorney, etc. Then we can help you with any Medicaid planning that would be appropriate for your situation right now. However, if it is determined that they do not have capacity, we will need to see if they have an incapacity plan in place that would allow someone else to make these planning decisions on their behalf. If there is no incapacity plan in place, it may be necessary to go to court to appoint someone to make those decisions for them.
credit: American Academy of Estate Planning Attorneys
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