Limitations On Capacity Limit Planning Options

by Stephan J. Lipskis, Esq.

Procrastination causes many to forego proper planning for mental impairments. Some estimate 1 in 6 women and 1 in 10 men will be subject to dementia during their lifetime, with Alzheimer’s Disease being the most prevalent form of dementia. Given those statistics, planning for the risk of impairment is crucial. Pre-impairment planning and post-impairment planning differ greatly, but accomplishing one or the other is crucial to maintaining quality of life and flexibility during impairment. Pre-impairment planning is like building your house on stilts in order to prevent a flood from ruining the property. Whereas, post-impairment planning is more akin to restoring a house after flood damage has occurred. Both address the same issue, but the preventive expense prevents the property from being affected in a flood.


“Pre-impairment planning” may be accomplished until an individual lacks the relevant legal capacity to execute appropriate documents for such planning. Generally, these documents include a power of attorney, advance medical directive, and Will. However, a trust can often be used if there are particular concerns about privacy, protection from financial abuse, and other issues. Where capacity is questionable, it is important to verify that an individual has the requisite capacity for executing these documents. An attorney experienced in demonstrating appropriate capacity was exhibited at the time documents were executed is critical to those documents being respected when they are needed. Failing to properly demonstrate capacity opens the door for family disputes and estate litigation, whereas a simple competency evaluation may have been sufficient to prevent such unnecessary expenses.

Minimal pre-impairment planning will determine who can make personal and financial decision during incapacity and what will happen to an individual’s belongings at death. More involved pre-planning can address specific healthcare needs, housing concerns, and other relevant matters.


“Post-impairment planning” is required when an individual lacks the mental capacity to execute appropriate planning documents. Where some pre-impairment planning was done, post-impairment planning may be easy to accomplish, but if pre-impairment planning was not done, then any post-impairment planning will likely be at greater time and expense, because a court will be needed.

If the impaired individual previously executed documents that encompass the current needs, those documents may be used at this time to address day-to-day needs and do some planning. The ability to further plan using previously executed estate planning documents depends on whether sufficient authority is given under the documents. Frequently, the documents that were previously executed, if any, are insufficient to accomplish needs during mental incapacity.

In Virginia, a court has authority to appoint a guardian and conservator for a legally incapacitated individual, if needed. A “guardian” in this context is in charge of making healthcare and other decisions regarding the individual “person”. The duties of a guardian generally include: determining where the individual should live, arranging for physician visits, and other personal, health, and safety needs. The authority of a guardian may be expanded or limited in the discretion of the court. The complementary position of “conservator” manages the financial affairs of the individual and files accountings to the Commissioner of Accounts, who is an officer of the circuit court. Like the guardian’s authority, the conservator’s authority can be expanded or limited in the discretion of the court.

The process for appointing a guardian and conservator requires the appointment of a Guardian ad Litem, an evaluation of the individual, and a hearing before a judge. The appointment of a guardian and conservator is the sole remedy when no pre-planning was done. As the authority given to the guardian and conservator is governed by the court order appointing them, it is important to have an attorney who understands the scope of powers that will need to be taken under those orders. If a guardianship and conservatorship is in place, but the order does not give a needed power, the guardian or conservator must petition to the court to expand the powers under the original guardianship order.

In conclusion, pre-impairment planning not only ensures that a plan is in place in the event of incapacity, but also eases planning that needs to be done during any incapacity. Furthermore, the strength of pre- and post-impairment planning depends on the understanding of the planning concerns that may be encountered by the individual. The attorneys at Hook Law Center routinely deal with issues such as long-term care planning, estate administration, and capacity planning. Using an attorney capable of crafting a plan that affords the flexibility to address issues that may arise is crucial to ensuring smooth transitions in the event of incapacity. Failure to have a plan that encompasses likely contingencies may leave an individual in a worse position than if no planning were done at all.

Kit Kat

Ask Kit Kat: Feel-Good Cat Videos

Hook Law Center: Kit Kat, what can you tell us about the psychology of cat videos?

Kit Kat: Well, interestingly enough, my family and some of our friends really like cat videos, but there does now seem to be some scientific proof that they can have a mood-enhancing effect on those who watch them. YouTube has loads of them—just go to their website and search for “cat.” Other sources are Facebook and Buzzfeed.

Here’s what’s been discovered by Jessica Gall Myrick, an assistant professor at Indiana University. She used the input of 7,000 (yes, that’s right, 7,000) people and tasked them with completing a lengthy online questionnaire. The respondents indicated when, where, and why they watch cat videos. She found that, on average, the subjects in the study watched cat videos 2-3 times per week, though they most often chanced upon them via social media rather than directly seeking them out. She also found that these video watchers had 3 things in common—1) most own or had owned a cat, 2) the viewers tended to be shy in their personality type, and 3) they spent a lot of time online. In conclusion, she found that the effect of watching the cat videos made the respondents feel more energetic, and they helped reduce stress levels, even when they felt a bit guilty for goofing off from work to do so. ‘Practically,’ Myrick says, ‘these findings …promote the idea that viewing Internet cats may actually function as a form of digital pet therapy and/or stress relief for Internet users.’

So indulge if you want and watch as many cat videos as you’d like. It’s actually therapeutic!

(Caitlin Dewey, “The fascinating, feel-good psychology of Internet cat videos,” The Washington Post, June 16, 2015)

Upcoming Seminars and Events

  • July 30 & 31, 2015 – The Hook Law Center Seminar for July, What You Don’t Know Can Hurt You – Recent Developments in Estate, Long Term Care and Special Needs Planning, will be held at 10am on Thursday, July 30, 2015 at the Hilton Garden Inn – Harbour View and at 10am on Friday, July 31, 2015 at the Crowne Plaza Hotel – Towne Center.  To register, please call 757-399-7506 and ask for Debbie or register online at hooklawcenter.com/seminars.
  • August 12, 2015 – Andrew Hook will be speaking to a group at Maryview Hospital in Portsmouth, Virginia.
  • August 20, 2015 – Andrew Hook will be speaking on Veterans Benefits at The Chesapeake.
  • August 21, 2015 – Andrew Hook will be speaking to a group at DePaul Hospital in Norfolk, Virginia.
  • August 22, 2015 – Hook Law Center is sponsoring “Shred with a Purpose” to be held at our Virginia Beach office, 295 Bendix Road, from 9am until 12Noon.  Donations to the Alzheimer’s Association for the “Walk to End Alzheimer’s” will also be accepted.  For more information, please call 757-399-7506 or click the following link to view the event flyer: Shred With A Purpose Flyer.
  • August 27, 2015 – Andrew Hook will be speaking to a group at Mary Immaculate Hospital in Newport News, Virginia.
  • September 9, 2015 – Andrew Hook will be speaking at a Virginia Continuing Legal Education seminar.
  • October 26, 2015Shannon Laymon-Pecoraro will be speaking at the National Business Institute’s seminar on The Probate Process from Start to Finish in Virginia Beach, Virginia.

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