Planning for Incapacity in California
You are incapacitated if you lose the ability to manage your affairs, particularly with respect to healthcare and financial decisions. Dementia, for example, might result in incapacity. Although not all of us will become incapacitated before we die, incapacity is common enough to demand advance planning. Following are some of the most popular legal tools for dealing with incapacity.
Durable Power of Attorney
You can use a durable power of attorney (DPOA) to designate an agent to make certain decisions for you if you become incapacitated. If you draft it properly, you can ensure that your agent’s authority will apply only while you are incapacitated. You can designate an agent to make healthcare decisions, financial decisions, or both. You can also limit the types of decisions your agent is entitled to make.
A word of caution--never, ever use a template DPOA that you find on the Internet.
Advance Health Care Directive
An Advance Health Care Directive (AHCD), also known as a living will, is a kind of DPOA. Under an AHCD, you can appoint an agent to make healthcare decisions for you. You will need witnesses and a notary public, however, to execute one under California law. Although you can often find AHCD templates at hospitals, you should still have your lawyer look it over it before you sign it. Special rules apply if you live in a nursing home at the time you execute an AHCD.
Physician Order for Life-Sustaining Treatment
A Physician Order for LIfe-Sustaining Treatment (POLST) tells medical staff how to manage your end-of-life care. One advantage of a POLST is that it allows you to make these decisions on your own before you lose capacity. It might, for example, order your doctors:
to provide you with full palliative care even if it means you die sooner; or
not to provide you with artificial nutrition to keep you alive once you lose consciousness.
You can also use a POLST to make other difficult end-of-life decisions.
Revocable Living Trusts
You can use a revocable living trust to avoid probate and to distribute your assets before and after your death. The trust document specifies how and when your assets should be distributed, and it can take effect while you are still alive. Although you can appoint yourself trustee, you can also specify another person to take over after you lose capacity. Under many circumstances, a revocable living trust works far better than a will.
Conservatorships
A conservator is called a guardian under the laws of other states. Under a conservatorship arrangement, you appoint someone to manage your financial affairs once you become incapacitated. Only a court order can establish a conservatorship.
Since courts take an active role in supervising conservatorships, you might want to choose a conservatorship over a DPUA if you aren’t sure who you can trust to make decisions for you.If you lose capacity, your loved ones can establish a conservatorship over you without your consent (Britney Spears is an example of this).
Contact Estate Planning Attorney Masumi Patel Today!
You will need considerable forethought and more than a little legal knowledge to plan effectively for incapacity. Contact the Law Office of Masumi Patel immediately to schedule a consultation. I will be happy to answer your questions and advise you of your options.