If an estate plan is in place, the first place to look for an answer to this question is in the estate planning documents. Normally the documents will set forth a procedure for making a determination of incapacity, and the provisions of one document (such as a living trust) might be different than those included in another (such as a Durable Power of Attorney for Property Management or a Durable Power of Attorney for Health Care Decisions).
A thorough/comprehensive set of documents will likely have several techniques for making this determination. Typical provisions are: 1) the successor (trustee, agent) can make the determination, 2) one or more doctors can make the determination or 3) a court can make the determination.
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