In the event an incapacitating illness or injury makes you unable to communicate physically or mentally, your life will be in the hands of others. The possibility of becoming incapacitated by an injury or illness is something every adult should think about so if/when the time comes, you know who will serve as your guardian and make decisions that are in your best interests and conform to your wishes.

Determining Incapacitation

The only person who can legally declare you incapacitated is a judge. Even though it might be obvious to people because you are in a coma, it can be less obvious if you suffer from a disease that can progressively get worse, like ALS or Alzheimer’s. While a doctor can certify that you are not competent, that doctor cannot decide who makes decisions on your behalf if you are found not to be competent. Only someone appointed by the Court or appointed by you in a Durable Power of Attorney (“DPOA”) or Health Care Proxy (“HCP”) can make decisions for you in the event of incapacitation.

Without a valid DPOA or HCP, someone would have to petition the court to have a guardian or conservator appointed on your behalf. This can be time consuming and a financial burden, especially in the event of an emergency.


If you haven’t made any plans for what happens in the event of an incapacitating illness or injury, then all the decisions regarding your life and your estate are left up to the court. Upon a finding of incapacitation by the Court, a guardian will be appointed to make decisions about your day-to-day life and, if necessary, a conservator will be appointed to deal with managing your finances. The Court will appoint someone as a “fiduciary” and that person is tasked with only looking out for your best interest. This could be a family member, friend, bank or a complete stranger. Whoever is appointed will have to be responsible for filing various documents with the Court and make decisions that you could have already decided if you had drafted a DPOA or HCP and appointed people to do these tasks – without Court intervention.

Most adults are not typically concerned with death or incapacitation because it is hard to think about one’s own mortality or health. However, by not thinking about these issues you could be allowing yourself to let another person make decisions about and involving you. This could also involve decisions about your children and family pets, never mind bills and other legal matters.

Durable Power of Attorney and Health Care Proxy

A DPOA allows you to appoint someone you trust, such as a relative or friend, to handle your day-to-day decisions. You must state that it is a durable power of attorney, so it takes effect without needing an official determination of incapacity. People who are appointed as your attorney-in-fact can access your bank accounts, settle claims on your behalf, pay bills, schedule appointments and sometimes even do estate planning. A DPOA can have appointments for guardians if one is needed. If you require admission to a nursing facility or administration of anti-psychotic medications, a guardianship may be needed even if there is a DPOA.

A HCP allows you to make decisions regarding a person’s health. It allows you to decide if someone is permitted to provide extraordinary measures to keep you alive, provide palliative care and whether or not you will be an organ donor. Your health care agent should be someone you trust and who knows what your choice is regarding end of life decisions.

End of Life Decisions

Depending on a person’s health and what is contained in a HCP, it might be wise to execute a Medical Order of Life Sustaining Treatment (“MOLST”) form with your provider. It is typically suitable for someone with a serious, advanced illness. If there is concern about habitually resuscitating someone or hospice care, it is important to think about a MOLST. This form should be filled out in conjunction with your health care provider and your appointed health care agent named in your HCP.

Given the endless questions that come into play when a person is injured, incapacitated or terminally ill, it is important to consult a lawyer to determine what your documents will be provide for your needs.

Content Updated: Originally published April 10, 2018

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