WHAT CAN YOU DO IF YOUR LOVED ONE IS PHYSICALLY OR MENTALLY  INCAPACITATED AND IS UNABLE TO HANDLE HIS OR HER FINANCIAL OR HEALTH CARE MATTERS?
       
What you can do to assist your loved one depends on whether he or she did any advance planning for incapacity. 

The first step you should take is to determine if any of the following apply:


*    Did your loved one sign an effective Advance Health Care Directive or Medical Power of Attorney?


An Advance Health Care Directive or Medical Power of Attorney is a document by which your loved one may empower another person to make health care decisions, including providing or withholding treatments, choosing medical facilities, and making end of life arrangements for him or her,  in the event of his or her incapacity.  If your loved one still has capacity to sign such form, you can obtain an Advance Health Care Directive form on-line at www.ag.ca.gov.


*    Did your loved one sign an effective Durable Power of Attorney?

Durable Powers of Attorney give the people appointed the powers stated in the document, but usually include the powers to manage your loved one's financial & legal affairs, manage personal and real property assets, pay bills, write checks, and access pensions or IRAs.  These powers may be drafted to take effect only if your loved one becomes incapacitated or may give immediate powers.  However, powers of attorney often cannot be used to access bank accounts or sell or mortgage real estate.


*    Does your loved one have a Living Trust?


Many people set up Living Trusts so that their estate avoids probate or gives their heirs certain tax advantages at their deaths.  However, they are also effective during life to give successor trustees powers to manage personal and real property for an incapacitated loved one.  The trust instrument may state when a current trustee (usually the incapacitated person) is deemed incapacitated so that the successor trustee or co-trustee can manage the property.


*    Has your loved one designated in writing, his or her choice of a conservator?


If your loved one did not do any advance planning, or if there are decisions that need to be made that you cannot make with the powers granted under the instruments he or she signed, you may need a conservatorship in order to make health care decisions, placement decisions, or to manage property for your loved one.  See if your loved one nominated a conservator in any written document.  This is often done within a Will, Durable Power of Attorney, or Advance Health Care Directive.  However, you can apply to become conservator with or without being nominated by the incapacitated loved one.

You may also need a conservatorship in order to transfer assets to make a spouse eligible for Medi-Cal or to ensure that the at-home spouse is left with sufficient assets for his or her care.  

*    CALL AN ELDER LAW ATTORNEY FOR ADVICE.

Whether your loved one prepared in advance for his or her capacity or not, there are many legal and ethical issues that arise when you are making decisions for someone else.  You will need the advice of an experienced attorney to ensure that you are acting within your powers and are protecting yourself from challenges to decisions you may make for an incapacitated loved one. 

CALL 831-772-8300 for a free consultation.

Attorney, Michelle Noble McCain,  has assisted families with their various legal needs for more than 30 years.  Licensed to practice in California only.

* Powers of Attorney
* Trusts & Wills
* Special Needs Trusts
* MediCal Planning
* Conservatorships
* Probate

The intention of this guide is to give you an overview regarding how you may be able to assist your incapacitated loved one.  It is not meant to be a substitute for legal advice and you should not rely on the information contained in this brochure without consultation with an attorney. The Law Office of Michelle Noble McCain does not represent you merely because you read this brochure. Each individual situation may differ in how it should be handled.

DO NOT MAKE ANY DECISIONS OR TAKE ANY ACTIONS BASED ON INFORMATION CONTAINED IN THIS ARTICLE, WITHOUT FIRST CONSULTING AN ATTORNEY.

CALL 831-772-8300 FOR A CONSULTATION WITH MICHELLE NOBLE MCCAIN, ATTORNEY AT LAW