Disclaimer: General educational research only — not legal or medical advice. Guardianship and power-of-attorney rules vary by state; talk to a local elder law or estate planning attorney about your situation.
Estate Planning Data & Research → The Incapacity Gap
A will only works after you die. The harder question for many families comes earlier: who pays the bills, talks to the doctor, or sells the house if Mom can’t make those decisions anymore?
If she signed a durable power of attorney and a health care directive while she still could, the family usually just uses them. If she didn’t, the family may have to go to court and ask a judge to appoint a guardian or conservator. That’s slower and more expensive, and it gives her less say.
We used the Census Bureau’s 2024 American Community Survey to count, state by state, how many people 65 and older report serious trouble concentrating, remembering or making decisions. Then we matched that against every guardianship, supported decision-making and power-of-attorney law states enacted in 2025 and 2026.
A power of attorney and a health care directive work best when they’re signed early, alongside a will. See whether you need a will, a living trust or both.
Downloads
Cite this page URL when reusing findings. Not a substitute for official sources or professional advice.
Key findings
- 4.6 million Americans 65 and older have a cognitive difficulty: 4,636,640 (±36,864), or 7.8% (±0.1) of the 65+ population living at home. The ACS defines this as serious difficulty concentrating, remembering or making decisions because of a physical, mental or emotional condition.
- The rate rises with age. Among people 75 and older it’s 11.5% (±0.1), or about 2.84 million people.
- New Mexico has the highest share: 10.8% (±0.8) of people 65+. Next are Mississippi at 9.9% (±0.7), Alabama at 9.7% (±0.5) and Hawaii at 9.5% (±0.9). Wyoming (5.0% ±0.9) and Iowa (5.5% ±0.4) are lowest.
- California has the most people affected: 571,137 (±13,015). Florida has 370,891 (±10,936) and Texas 359,848 (±10,819).
- 26 states passed 51 guardianship, supported decision-making or power-of-attorney laws in 2025–26. That’s 53 bills; in two cases Virginia passed identical House and Senate versions, which we count once. Illinois passed the most (six), followed by Kansas and Texas (four each). Kansas adopted a supported decision-making agreements act (SB 84, 2026). A year earlier it adopted both the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act and the uniform adult guardianship jurisdiction act (HB 2359, 2025).
- Big uniform-law rewrites are spreading. Idaho adopted the same uniform guardianship act (S 1240, effective Jan. 1, 2027). Washington amended its version of the same act (SB 5837, 2026). Oklahoma enacted the Uniform Health Care Decisions Act (HB 1687, signed May 11, 2026).
- 49 more bills are still alive in legislatures that are in session, mainly New Jersey (16), Michigan (15) and Massachusetts (10). Massachusetts H 4852, a supported decision-making bill, was reported favorably by committee in August 2026. Ohio SB 35 passed the Senate and is now in a House committee.
State-by-state table
Population 65+ and 75+ living in households and non-institutional group quarters; nursing home residents are not included. MOE = 90% margin of error. “Laws enacted” counts identical House/Senate companion bills once. “Still pending” counts bills in sessions LegiScan lists as open on Oct. 6, 2026; we treat Maryland and South Carolina as adjourned. Bill-by-bill details and verification are in the CSV download.
| State | People 65+ with cognitive difficulty (±MOE) | Share of 65+ (±MOE) | Share of 75+ (±MOE) | Guardianship/POA laws enacted 2025–26 | Still pending |
|---|---|---|---|---|---|
| Alabama | 89,988 (±4,761) | 9.7% (±0.5) | 14.1% (±0.9) | 0 | 0 |
| Alaska | 9,001 (±1,517) | 8.3% (±1.4) | 11.8% (±2.6) | 1 | 2 |
| Arizona | 104,159 (±5,894) | 7.1% (±0.4) | 10.6% (±0.8) | 0 | 0 |
| Arkansas | 46,774 (±3,463) | 8.6% (±0.6) | 12.5% (±1.1) | 0 | 0 |
| California | 571,137 (±13,015) | 8.9% (±0.2) | 13.6% (±0.4) | 2 | 1 |
| Colorado | 67,375 (±4,558) | 7.0% (±0.5) | 10.8% (±0.9) | 1 | 0 |
| Connecticut | 46,741 (±3,788) | 6.7% (±0.5) | 10.2% (±1.0) | 1 | 0 |
| Delaware | 14,836 (±1,905) | 6.6% (±0.9) | 9.9% (±1.5) | 1 | 0 |
| District of Columbia | 7,724 (±1,492) | 8.7% (±1.7) | 11.7% (±2.8) | 0 | 0 |
| Florida | 370,891 (±10,936) | 7.4% (±0.2) | 10.7% (±0.4) | 0 | 0 |
| Georgia | 138,774 (±6,085) | 8.0% (±0.4) | 12.5% (±0.7) | 2 | 0 |
| Hawaii | 29,034 (±2,713) | 9.5% (±0.9) | 14.4% (±1.7) | 2 | 0 |
| Idaho | 24,942 (±2,159) | 7.2% (±0.6) | 11.3% (±1.2) | 1 | 0 |
| Illinois | 149,480 (±6,725) | 6.8% (±0.3) | 10.4% (±0.6) | 6 | 0 |
| Indiana | 85,668 (±4,794) | 7.3% (±0.4) | 10.8% (±0.8) | 2 | 0 |
| Iowa | 32,007 (±2,474) | 5.5% (±0.4) | 7.9% (±0.7) | 2 | 0 |
| Kansas | 35,838 (±2,775) | 7.0% (±0.5) | 9.9% (±0.9) | 4 | 0 |
| Kentucky | 72,125 (±4,026) | 9.0% (±0.5) | 11.9% (±0.9) | 0 | 0 |
| Louisiana | 67,345 (±4,121) | 8.4% (±0.5) | 11.6% (±0.9) | 0 | 0 |
| Maine | 21,110 (±2,285) | 6.6% (±0.7) | 10.3% (±1.4) | 1 | 0 |
| Maryland | 72,609 (±4,795) | 6.8% (±0.4) | 10.2% (±0.8) | 0 | 0 |
| Massachusetts | 93,045 (±5,255) | 7.2% (±0.4) | 10.2% (±0.7) | 0 | 10 |
| Michigan | 146,955 (±5,539) | 7.5% (±0.3) | 11.2% (±0.6) | 1 | 15 |
| Minnesota | 61,775 (±3,634) | 6.0% (±0.4) | 8.6% (±0.7) | 0 | 0 |
| Mississippi | 51,034 (±3,447) | 9.9% (±0.7) | 14.1% (±1.3) | 1 | 0 |
| Missouri | 87,951 (±4,457) | 7.8% (±0.4) | 10.9% (±0.7) | 0 | 0 |
| Montana | 16,124 (±1,772) | 6.8% (±0.8) | 10.9% (±1.4) | 2 | 0 |
| Nebraska | 20,922 (±2,083) | 6.2% (±0.6) | 7.9% (±1.0) | 2 | 0 |
| Nevada | 45,303 (±3,578) | 7.9% (±0.6) | 10.8% (±1.1) | 3 | 0 |
| New Hampshire | 19,243 (±2,281) | 6.5% (±0.8) | 10.2% (±1.5) | 0 | 0 |
| New Jersey | 109,088 (±5,988) | 6.5% (±0.4) | 10.4% (±0.7) | 0 | 16 |
| New Mexico | 45,642 (±3,355) | 10.8% (±0.8) | 15.3% (±1.4) | 0 | 0 |
| New York | 311,145 (±9,473) | 8.5% (±0.3) | 12.5% (±0.5) | 0 | 0 |
| North Carolina | 142,073 (±6,618) | 7.3% (±0.3) | 11.0% (±0.6) | 0 | 0 |
| North Dakota | 8,695 (±1,556) | 6.5% (±1.2) | 9.0% (±2.0) | 2 | 0 |
| Ohio | 164,872 (±6,467) | 7.5% (±0.3) | 10.9% (±0.5) | 0 | 3 |
| Oklahoma | 63,088 (±3,058) | 9.4% (±0.5) | 13.4% (±0.9) | 1 | 0 |
| Oregon | 73,528 (±4,180) | 8.8% (±0.5) | 12.2% (±0.9) | 0 | 0 |
| Pennsylvania | 187,525 (±7,219) | 7.3% (±0.3) | 10.5% (±0.5) | 1 | 2 |
| Rhode Island | 15,733 (±2,383) | 7.4% (±1.1) | 9.0% (±1.9) | 0 | 0 |
| South Carolina | 78,898 (±4,777) | 7.4% (±0.4) | 11.5% (±0.8) | 0 | 0 |
| South Dakota | 11,395 (±1,793) | 6.8% (±1.1) | 9.5% (±2.0) | 0 | 0 |
| Tennessee | 102,269 (±4,795) | 8.2% (±0.4) | 12.8% (±0.7) | 0 | 0 |
| Texas | 359,848 (±10,819) | 8.4% (±0.3) | 13.0% (±0.5) | 4 | 0 |
| Utah | 29,337 (±2,819) | 6.8% (±0.7) | 11.0% (±1.4) | 3 | 0 |
| Vermont | 8,474 (±1,246) | 5.8% (±0.9) | 8.6% (±1.7) | 0 | 0 |
| Virginia | 108,639 (±5,143) | 7.2% (±0.3) | 10.8% (±0.7) | 3 | 0 |
| Washington | 110,063 (±5,931) | 8.1% (±0.4) | 12.5% (±0.8) | 1 | 0 |
| West Virginia | 33,552 (±2,857) | 8.9% (±0.8) | 12.7% (±1.4) | 0 | 0 |
| Wisconsin | 67,190 (±3,525) | 5.9% (±0.3) | 8.8% (±0.5) | 1 | 0 |
| Wyoming | 5,676 (±1,091) | 5.0% (±0.9) | 8.9% (±2.1) | 0 | 0 |
Why the numbers differ from state to state
Age and health. States with older populations, and states with higher rates of stroke, diabetes and heart disease, tend to report more cognitive difficulty. The ACS question asks about any physical, mental or emotional condition, so it’s broader than dementia.
Who lives at home. The ACS figure here leaves out people in nursing homes. States that rely more on home and community care can look higher simply because more people with memory problems still live in the community.
Margins of error. Small states have bigger margins. Wyoming’s 5.0% could reasonably be anywhere from 4.1% to 5.9%. Don’t treat a few tenths of a point between states as a real difference.
Guardianship law is in flux. Many states are adding “less restrictive alternatives” to their guardianship codes. These include supported decision-making agreements, limited guardianships, and requirements that a judge consider an existing power of attorney first. More laws doesn’t mean a state is better or worse. It means the legislature was busy.
What this means for your family
The best time to sign a durable power of attorney and health care directive is when everyone is healthy and the conversation feels unnecessary. After a diagnosis, a parent may still have enough capacity to sign, but waiting raises the risk that a court has to get involved.
If you’re helping aging parents, start with our guide for when your parents are getting older. If something has already happened, see we need a plan now. A living trust can also let a successor trustee step in without a conservatorship.
Related: Older adults living alone, by state · Medicaid estate recovery by state
Related research: SSI’s $2,000 asset limit and special needs trusts counts SSI recipients in every state and explains how a trust can keep an inheritance from counting against benefits.
Methodology
Census data. U.S. Census Bureau, American Community Survey 2024 1-year estimates, table B18104 (Sex by Age by Cognitive Difficulty), civilian noninstitutionalized population. “65+” adds the 65–74 and 75+ groups for men and women (B18104_012, _015, _028, _031). “With a cognitive difficulty” adds _013, _016, _029 and _032. We combined MOEs with the Census Bureau’s root-sum-of-squares formula and derived MOEs for shares with its proportion formula. Estimates and MOEs are in the CSV download. National figures use the U.S. total and exclude Puerto Rico.
Laws. Family Estate Guide’s law tracker pulls LegiScan for bills introduced in 2025 and 2026 that match guardianship, conservatorship, supported decision-making, power of attorney, advance directive and health care decisions topics. We screened titles to drop unrelated bills, such as minor guardianship and child custody, and rechecked enacted bills whose titles didn’t match against their descriptions and text (this added Illinois HB 4462 and HB 5365, Indiana HB 1088 and SB 71, and Nevada AB 461 on Oct. 6, 2026). Resolutions are excluded. “Enacted” means LegiScan status “enacted,” checked on the official legislature website where possible. Each bill in the CSV download is marked either “verified” or with LegiScan’s last action date. Identical House and Senate companion bills in the same session are counted once.
What this doesn’t measure. We don’t know how many older adults have signed a power of attorney. No federal survey publishes that by state. The ACS measure is self-reported (or reported by another household member), not a clinical diagnosis.
Related research: power-of-attorney abuse watch (national elder-exploitation reports and 2026 state laws) and end-of-life wishes by state (hospice use and advance-directive bills).
Also see will contest watch, which counts published appeals-court opinions in which lack of capacity or undue influence was argued against a will or trust.
Frequently asked questions
What counts as a “cognitive difficulty” in the Census data?
The ACS asks whether, because of a physical, mental or emotional condition, a person has serious difficulty concentrating, remembering or making decisions. It’s a yes/no question answered for each household member. It isn’t a dementia diagnosis.
What happens if a parent loses capacity without a power of attorney?
Usually a family member has to petition the court for guardianship (decisions about the person) or conservatorship (decisions about money), depending on the state’s terms. That means filing fees, often a lawyer, a hearing, and ongoing reports to the court.
What is supported decision-making?
It’s an arrangement where a person keeps the right to make their own decisions but names trusted supporters to help them understand options and communicate choices. A growing number of states recognize written supported decision-making agreements. Kansas and Hawaii are recent examples.
Is a power of attorney enough, or do I need a trust too?
A durable power of attorney covers most financial tasks. A funded living trust adds a successor trustee who can manage trust assets without a court and can make the transition smoother after death. Many families use both.
Can someone with early dementia still sign a power of attorney?
Often yes, if they understand what they’re signing at the time. The legal standard varies by state. A lawyer can help document capacity, which makes the document harder to challenge later.
Sources
Government public-domain data and official legislature pages only.
Census
U.S. Census Bureau, ACS 2024 1-year, Table B18104 (Sex by Age by Cognitive Difficulty): https://api.census.gov/data/2024/acs/acs1/groups/B18104.html API: get=B18104_012E…_032E with M (MOE) variables, for=state:* and us:1. Pulled 2026-10-06.
ACS disability questions and definitions: https://www.census.gov/topics/health/disability/guidance/data-collection-acs.html
- MOE formulas: Census Bureau, “Understanding and Using American Community Survey Data” (2020), Ch. 8: https://www.census.gov/programs-surveys/acs/library/handbooks/general.html
State laws, 2025–26
- Family Estate Guide law tracker, LegiScan API pull of 2026-10-06 (LegiScan data CC BY 4.0). Topics: guardianship_sdm, poa_directives. Bill-level details: the CSV download on this page
- Official verification (2026-10-06). Examples:
- Idaho S1240 (UGCOPAA, Session Law ch. 79, eff. 1/1/2027): https://legislature.idaho.gov/sessioninfo/2026/legislation/S1240/
- Kansas SB84 (2026) and HB2359 (2025): https://www.kslegislature.gov/
- Oklahoma HB1687 (Uniform Health Care Decisions Act of 2026, approved 5/11/2026): https://www.oklegislature.gov/BillInfo.aspx?Bill=hb1687&Session=2600 (site intermittently times out)
- Washington SB5837 (2026): https://app.leg.wa.gov/billsummary?BillNumber=5837&Year=2026
- Colorado HB26-1100 (signed 5/29/2026): https://leg.colorado.gov/bills/hb26-1100
- Massachusetts H4852 (ought to pass with amendment, 8/10/2026): https://malegislature.gov/Bills/194/H4852
- Ohio SB35 (passed Senate; in House Children and Human Services): https://www.legislature.ohio.gov/legislation/136/sb35
- Each bill’s verification label (verified, or “per LegiScan last action, date”) is in the CSV download.
Not verified / limits
- Bills from states whose official sites block automated checks or need JavaScript (AL, GA, IN, MT, WY, NJ, AZ, CA, HI, NY Senate, OK, WV, VA, RI, NV, DC) are labeled per LegiScan.
- No state-level government data on how many older adults have a power of attorney or health care directive was found, so the page doesn’t estimate it.
Cite this data
Family Estate Guide, “The Incapacity Gap: Memory Problems After 65 and Guardianship Laws by State,” October 2026. https://familyestateguide.com/estate-planning-data/incapacity-gap/
You’re welcome to reuse the table with a link back to this page. Census data is public domain.
Published October 6, 2026 by Family Estate Guide. Data vintage: ACS 2024 1-year estimates (released September 2025); state bills per LegiScan pull of Oct. 6, 2026, with official-site checks the same day. Editorial standards.