Christene (Chris) Krupa Downs
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Guardianship and Capacity: The Fine Line between Disability and Incapacity

Christene Krupa DownsReviewsout of 7 reviews
Christene “Chris” Krupa Downs
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children playing with mother

Children playing with mother

The idea of disability and incapacity are often used interchangeably in the general public. In relation to guardianship, if an individual is disabled or incapacitated, it will help determine the best alternatives in setting up an appropriate guardianship for that individual. In a broad sense, these terms are useful to describe the challenges or limitations that a person may have who needs outside services to manage everyday tasks in life. But it is difficult to refer to someone who needs help managing the tasks of everyday life, if the most accurate terms to the person’s limitations are not being employed correctly. In a general sense, these words are not the same definition, and have two distinct meanings under the law.

Guardianship and Disability in Texas

If a person is disabled, it refers to someone who has suffered or is experiencing a disability such as a handicap, impairment that prevents the person from managing on his own, or has limited function. This can relate to bodily functions, cognitive or intelligence functions, ability to participate socially or in being able to live independently. The impairments related to a person’s body can be with an anatomical, physiological or psychological impairment, loss or abnormal structure.

For example, if a person has had an amputation of a limb, the person’s mobility is severely limited and the individual may need a wheelchair for the rest of his life. If the individual is cognitively limited by an impairment, such as from a stroke or heart attack, or from a degenerative disease such as Alzheimer’s Disease, then that individual may be disabled for that reason as well.

Guardianship and Incapacity in Texas

If an individual has an incapacity, such as an incapacity to be able to go to work, then the individual is not able to work because of an obstacle or impairment. For example, an individual can be disabled and still work at a job, by virtue of having highly functioning cognitive skills. 

A person who has a disability or incapacity under the law may be entitled to benefits, social services or need extra help in everyday living. This may require that the individual get a doctor’s referral letter, before the individual can be referred to social services in the community. An individual can have a long-term or short-term disability or incapacity, and will need to work according to the severity of the limitations or challenges that are posed by the person attempting to manage everyday life tasks. For example, a person may have an issue that can be managed quite well with taking the proper dose of medication daily, which will help the individual to continue to live independently in the community.

If you have any questions regarding disabilities and incapacitated status, get in touch with a Texas estate planning lawyer to learn more about your rights.

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