When considering incapacity as it relates with the law and estate planning, one is compelled to ask the question: does a blind, deaf or mute person pass as an incapacitated by law? To answer this question, we have to first understand the legal concept of incapacity.
What is Incapacity?
Incapacitation or incapacity, as it is defined legally, is a situation whereby an individual is unable to handle his or her own personal, medical or estate affairs by reason of not being able to make logically sound decisions and judgement. When a person becomes incompetent or unable to make intelligent decisions or care for themselves, then that person is declared incapacitated. It is mostly obvious with people with mental disorders like Alzheimer’s and dementia, as opposed to physical disability. People with mental disorders are not expected to make reliable or sensible decisions, whereas physically disabled people (with no injury to head or brain) can still do so without difficulty. But when it comes to blindness, deafness and muteness, the line between incapacitation and physical disability becomes a little thinner.
Does that mean that a deaf, blind, or mute person can sometimes be taken as incapacitated?
The answer is no. Any one of these three disabilities cannot on their own render someone incapacitated, so long there is no underlying mental disease suffered by the individual.
Incapacity is only established by the court when there is clarity that the individual has been rendered incapable of making intelligent decisions. Blindness alone does not make one incapable of making sensible decisions, neither does deafness nor muteness. All of these can simply be seen as disabilities and language barriers. However, any or a combination of these physical disabilities will make it more difficult for an individual to understand and go into formal contracts but when given substantial assistance, they can do so intelligently. Deafness, blindness, or muteness alone does not affect one’s mental state, so the individual would still be deemed mentally sound, therefore not incapacitated.
What if a person is blind, deaf and mute at the same time?
If a person is blind, deaf and mute at the same time, they cannot be declared incapacitated unless there is a mental condition as well.
Are there any legal provisions to accommodate such persons?
Yes. As have been said, the physical disabilities listed do not constitute mental disability (incapacitation) and so such persons can go into formal contracts, create wills and trusts, etc. But these persons have to be aided to a great extent. Such aids offered are aimed at making the disabled understand the terms of the agreement as much as the other party.
So what are the aids?
Blind, deaf and mute persons can be aided through the following ways:
- For visually impaired persons who can read and/or speak, the details of the contract should be clearly voiced out to them to their hearing so long they can hear and understand. Brailles may also be used. Every word of the document should be spelt out, and the blind individual must be made to write and/or speak out their understanding of the contract for confirmation in the presence of a witness. The client’s hand should be directed to the signature field. This aid applies to mute clients as well.
- For deaf or mute persons, a professional American Sign Language interpreter (ASL) should be employed to interpret all the details of the legal contract to the perfect understanding of the deaf/mute. If the legalities of the contract are not too complex, notes could be written if the person understands written English.
- Instead of a live professional ASL, Video Relay Interpreters are now commonly used. A Video Relay Interpreter is an electronic device that offers sign language interpretation through videos. However, if the client gets inadequate understanding through the device, an ASL should be brought in.
- There are also aids available for those who suffer from a combination of these three disabilities. An individual that is both deaf and mute is provided with visual ASL interpreter. Blind-deaf individuals are provided with Tactile Sign Language experts, while individuals that are both blind and mute are provided with Brailles.
When does a blind, deaf or mute person become incapacitated?
A blind, deaf or mute person may only be declared incapacitated by the court when there is a clear case of mental incapacity such as Alzheimer’s, Dementia, etc. When mental incapacity is added to any of the above physical disabilities, the individual becomes even more difficult to care for, but they are given the same provisions meant for the mentally incapacitated. A mentally-sound Guardian will be appointed by the court to look after the personal affairs of the incapacitated. The Guardian has a fiduciary duty to ensure the individual gets all-round healthy living. Also, financial provisions will be made available for the incapacitated.
If you have a loved one going through the perils of the above physical or mental disabilities, kindly speak to an Elder Law Attorney to know what steps to make in ensuring that your loved one gets the best care they deserve.