Does a Will Cover Incapacity in Alabama or Florida? (Spoiler: It Doesn’t.)
- Colin McMichen
- Mar 5
- 4 min read
Many people in Alabama and Florida believe that once they sign a will, their estate plan is complete.
They assume their will covers everything — including what happens if they become seriously ill, injured, or unable to make decisions.
It does not.
It only becomes effective after death. If you become incapacitated during your lifetime, your will provides no authority for anyone to act on your behalf.
Understanding this distinction is essential for proper estate planning.
The Importance of Incapacity Planning
Planning for incapacity is not just about rare emergencies — it is a real possibility for many older adults. Studies estimate that around 29% of adults age 65 and older in the United States experience some form of diminished decision-making capacity, including dementia or mild cognitive impairment (MCI).
The risk increases with age. While a 65-year-old may have a lower chance of developing cognitive challenges, the likelihood is higher for an 80-year-old. This means that incapacity planning — through documents like a durable power of attorney, advance directive for health care, and HIPAA authorization — is a critical part of protecting yourself and your family as you age.
To learn more, click here, to read an article from the Financial Planning Association.
What Happens If You Become Incapacitated Without a Durable Power of Attorney and Health Care Directive?
If you become incapacitated without a valid durable power of attorney and health care directive, your loved ones may need to petition the probate court for guardianship and conservatorship proceedings.
Guardianship and conservatorship proceedings can involve:
Filing a formal petition with the court
Medical evaluations to determine incapacity
Court hearings
Appointment of a guardian and conservator
Ongoing reporting and court supervision
This process can be time-consuming, expensive, and public.
Most importantly, a judge — not you — decides who will manage your finances and make medical decisions for you.
A Common Scenario
Consider this:
A 50-year-old parent suffers a severe stroke but survives. They have a properly executed will naming their spouse and children as beneficiaries.
However, they never signed a durable power of attorney or health care directive.
The individual maintains a separate bank account that is used to pay the mortgage and household expenses. When their spouse attempts to access their account to pay the mortgage and household expenses the bank requests legal authority.
The will does not help — because the individual is still alive.
A similar situation occurs when a small business owner is hospitalized unexpectedly. Contracts need signatures. Payroll must be processed. Without a durable power of attorney, family members cannot act.
In both cases, the will offers no solution.
Because a will does not operate during incapacity.
What a Will Does — and Does Not Do — in Alabama and Florida
A Last Will and Testament allows you to:
Direct how your assets are distributed after death
Nominate a guardian for minor children (In Florida, a guardian for minor children is nominated in a Declaration of Preneed Guardian for a Minor Child.)
Appoint a personal representative to handle your estate
A will does not:
Authorize someone to manage your finances during your lifetime
Allow someone to make medical decisions for you
Prevent guardianship and conservatorship proceedings if you become incapacitated
If you are alive but unable to act, your will has no legal authority.
What Documents Cover Incapacity?
To properly address incapacity planning in Alabama and Florida, your estate plan should include:
Durable Power of Attorney
Allows you to appoint someone to manage financial and legal matters if you become incapacitated.
Advance Directive for Health Care (Alabama)
Contains a living will which states your preferences regarding life-sustaining treatment and allows someone to make medical decisions for you.
Living Will and Designation of Health Care Surrogate (Florida)
States your preferences regarding life-sustaining treatment and allows someone to make medical decisions for you.
HIPAA Authorization
Allows designated individuals to access your medical information.
Together, these documents create a comprehensive incapacity plan.
Is My Spouse Automatically Authorized?
Many people in Alabama and Florida believe their spouse automatically has authority to handle everything.
That is not always true.
A spouse does not automatically have authority to:
Access individually titled bank accounts
Manage retirement accounts
Sell separately owned real estate
Operate a business interest
Sign certain financial or legal documents
Financial institutions often require a properly executed durable power of attorney.
Without it, court involvement may be necessary.
Why Incapacity Planning Is Critical in Alabama and Florida?
A will protects your estate after death.
Incapacity planning protects you during life.
The risk of temporary or long-term incapacity due to:
Stroke
Accident
Surgery complications
Dementia
Serious illness
is often greater than people expect.
Without incapacity documents:
Bills may go unpaid
Investments may go unmanaged
Business operations may stall
Medical decisions may be delayed
Family conflict may increase
Planning in advance reduces stress and protects your family from unnecessary court proceedings.
How Often Should I Review My Incapacity Documents?
You should review your documents:
Every three to five years
After marriage or divorce
After major financial changes
After moving to a new state
If your chosen agent can no longer serve
State-specific requirements can change, so periodic review is important.
The Bottom Line: A Will Is Not Enough
If your estate plan consists only of a will, there is a significant gap in your protection.
Proper estate planning in Alabama and Florida should address both:
What happens if you cannot act for yourself
What happens after death
Your Next Step
At Provident Law, we help individuals and families create comprehensive estate plans that include incapacity planning, asset protection, and clear decision-making authority.
If you are unsure whether your current documents protect you during life, we invite you to schedule a consultation.
The best time to protect your family is long before an emergency ever arises.
About the Author
Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families navigate complex legal matters with confidence.
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