Things like wills and trusts are naturally going to come to mind when you think about estate planning. Transferring assets is certainly part of the process, but you should also think about the latter portion of your life and the potential for conservatorship proceedings. To prepare in advance, you could execute a legally binding document called a durable power of attorney. Before we look at the details that surround a power of attorney, we should explain some things about incapacity so that you are fully informed.
Incapacity Is Common
If you walk up to the proverbial man on the street and ask him if he thinks that he will live into his 80s, he would probably say that it is quite possible. On the other hand, if you asked the same person if he’s ever going to be incapacitated, he would probably say that it is unlikely.
In fact, a very high percentage of people who have reached their 80s do become unable to make sound decisions on their own.
Alzheimer’s disease strikes around 45 percent of people who are at least 85. It afflicts approximately 13 percent of all senior citizens. Alzheimer’s induced dementia can certainly make it impossible for you to make sound decisions for yourself. Under these circumstances, a conservatorship proceeding could be convened.
The state would hear the evidence, and a conservator would be appointed to manage your affairs if the court decides that you are in fact incapacitated.
This can be a good thing. You may genuinely need help, and the court would empower someone to act on your behalf to ensure your well-being.
It’s great to have a decision-maker in place if you need one. However, during a conservatorship hearing the state may wind up appointing someone that you never would have chosen on your own. This possibility would be quite disconcerting to many people.
Everyone in the family is not necessarily going to be on the same page. Some of your loved ones may feel as though you need a conservator, and others may disagree. Even if they all agree that a conservatorship is necessary, there can be infighting with regard to whom the conservator should be. Things can get heated at a time when family members should be pulling together to support one another.
There is a third drawback that can go along with the conservatorship proceeding. In many cases, legal expenses will accumulate, and the expense factor is another negative.
Durable Power of Attorney
You can prepare for the possibility of incapacity on your own by executing a legally binding device called a durable power of attorney. With this document you name someone to handle your affairs in the event of your incapacitation. Because the power of attorney is designated as durable, it remains in effect even if you do become incapacitated.
When you have a durable power of attorney in place, there is no need for a conservatorship hearing. The powers that be will recognize the legally binding nature of the device, and your own hand-picked attorney-in-fact will be able to act on your behalf in the event of your incapacitation.
There are different types of decisions that can present themselves if you were to become incapacitated at some point in time. To account for financial decision-making, your incapacity plan can include a durable financial power of attorney. You can also add a durable power of attorney for health care. This document is sometimes called a health care proxy. The agent that you name in your durable power of attorney for health care would be empowered to make medical decisions on your behalf.
We should point out the fact that you do not have to name the same person to act as your agent for each different respective document. You could have one person act as your financial decision-maker, and another person could be your health care agent.
We Are Here to Help
As you can see when you digest the information in this blog post, a comprehensive estate plan will address the issues that you may face toward the end of your life. Decision-making is one of them, but there is another important thing to take into consideration. Many elders require living assistance late in their lives, and Medicare does not pay for long-term care. Nursing homes are very expensive, so this is a very big elder law issue.
For more information, please join us for one of our upcoming free seminars. If you have additional questions or concerns about conservatorship in the State of California, contact the Collins Law Firm by calling (310) 677-9787 0r Click Here reserve for a Free Estate Planning Workshop.