Although it may be difficult to envision a future where you are incapacitated and unable to care for yourself and/or manage your affairs, doing so now ensures that you retain control over who will be chosen to make decisions for you and manage your affairs for you. If you fail to plan ahead for the possibility of your own incapacity, it may be left up to a court to make that decision. A Los Angeles probate attorney from Collins Law Firm explains how careful planning now could avoid conservatorship in the future.
What Is Conservatorship?
In California, if a court determines that an adult is unable to manage his/her affairs (finances, assets, and estate) and/or make decisions for himself/herself, the court will appoint a Conservator. California recognizes both a Conservatorship of the Person and a Conservatorship of the Estate. A Conservatorship of the Person is established when an adult is unable to care for his/her personal needs, such as maintaining regular hygiene and taking prescribed medication. A Conservator of the Person will be responsible for protecting the adult and will have the authority to make personal decisions for the adult, such as where he/she will live. A Conservatorship of the Estate is established when an adult cannot handle financial matters. A Conservator is appointed to manage the adult’s income and pay bills and may have authority to do things such as sell property or encumber assets owned by the adult. Anyone can petition to become a Conservator; however, a court will typically look to close relatives first when choosing a Conservator. Unfortunately, if more than one person petitions to become a Conservator, a costly and divisive court battle may ensue, causing irreparable harm to the family as a whole. The good news is that there are some steps you can take to avoid putting your loved ones in that situation while also ensuring that the person of your choice has control over you and your affairs in the event it becomes necessary.
What Can You Do Now to Avoid Conservatorship Later?
There are several estate planning tools and strategies that can be incorporated into your overall estate plan to help avoid the necessity of a Conservator later on in your life, including:
- Power of Attorney – a Power of Attorney (POA) is a legal document that allow you to grant someone of your choosing (your “Agent”) the authority to act on your behalf in legal matters. A POA can be general or limited. With a general POA your Agent has almost unfettered authority to act on your behalf whereas with a Limited POA the Agent only has the authority specifically enumerated in the POA document. If the POA is a durable POA the authority granted to your Agent will survive your incapacity.
- Advance Directives – an advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. California recognizes two types of advance directives — the California Power of Attorney for Health Care and Individual Instructions. A Power of Attorney for Health Care allows you to appoint someone as your Agent to make decisions for you in the event you are unable to make them yourself because of your incapacity at some point in the future. Your Agent will have the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on your behalf. The Individual Instructions document is California’s version of a Living Will which lets you state your wishes about health care if you can no longer speak for yourself. You also can limit the Individual Instructions to take effect only if a specified condition arises.
- Revocable Living Trust — a revocable living trust is an excellent incapacity planning tool because it allows you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the Successor Trustee. You then transfer assets into and out of the trust throughout your lifetime, maintaining the ability to control and manage those assets as the Trustee. If you become incapacitated, your designated Successor Trustee takes over control of those assets automatically, without the need for court intervention.
Contact a Los Angeles Probate Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about an adult conservatorship in California, be sure to consult with an experienced Los Angeles probate attorney. Contact the Collins Law Firm by calling (310) 677-9787 to register for one of our FREE estate planning workshops.