An Incapacity Clause is a provision included in estate planning documents, such as wills, trusts, or advance health care directives, that outlines the procedures and decisions to be made in the event that the individual (often referred to as the "grantor" or "testator") becomes incapacitated. Incapacity refers to a condition in which a person is unable to manage their own affairs or make decisions due to physical or mental limitations, such as illness, injury, or cognitive decline.
The Incapacity Clause typically specifies who will serve as the decision-maker or agent on behalf of the incapacitated individual, often designating a trusted family member or friend to handle financial, medical, and legal matters. This agent may be granted broad powers to manage assets, make health care decisions, or handle any necessary legal affairs.
For example, in a revocable living trust, the Incapacity Clause may dictate that if the grantor is deemed incapacitated by a qualified physician, the successor trustee will automatically take over management of the trust assets without the need for court intervention. This provision ensures continuity in the management of the estate and helps to avoid potential disputes or delays that can arise during incapacity.
In Texas, it is particularly important to ensure that the Incapacity Clause conforms to state laws regarding powers of attorney and health care directives. The Texas Health Care Code and the Texas Estates Code provide specific requirements for creating valid advance directives and powers of attorney, which can impact the effectiveness of the Incapacity Clause.
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