In this article, you can discover…
- Reasons why it’s wise to plan ahead for incapacity.
- How conservatorship can impact your loved ones and personal freedom.
- How an experienced attorney can help you put secure estate plans in place.
What Are The Risks Of Failing To Plan In Advance For Incapacity?
By definition, being incapacitated means that you are no longer in a suitable state to make decisions for yourself. If you are a legal adult over the age of 18 who lives in California, your entire life could go on hold if you become incapacitated and have no one designated to make decisions on your behalf. Whether they be medical, financial, or otherwise, it can be difficult to handle your life affairs while you are incapacitated if you have not arranged for someone to make decisions on your behalf.
From a legal standpoint, there are several documents that are important to have in place in advance of incapacity. They include a Power of Attorney, Advance Healthcare Directive, HIPAA Authorization and Waiver, and (if wanted) an Advance Dementia Directive.
Additionally, there are some logistical elements to organizing your documents that need to be considered to properly prepare for this possibility. Important documents such as your passport and birth certificate will need to be compiled in such a way that they can be easily accessed if someone needs to step in to handle your affairs on your behalf.
I always recommend leaving a letter of instruction to outline any details about handling finances, addressing medical concerns, and even handling everyday affairs like feeding pets and putting on certain TV shows. Having clear instructions along with outlined access information will make it far easier for someone to step in and manage your affairs.
It can also be helpful to have a Section 4305 affidavit blank form that are available for your power of attorney (or Agent) to use. Oftentimes, your lawyer will prepare these blanks in advance so that you can have an affidavit readily available.
Additional materials will be required if you are responsible for a minor or an individual with special needs. Documents such as a minor power of attorney for special needs will be required to ensure that the people who need you in their lives can be taken care of seamlessly and without any hangups.
How Might Failing To Have An Estate Plan Result In The Need For A Conservatorship?
If you don’t have someone who is legally designated to make decisions on your behalf, you will need to go to court and go through a conservatorship proceeding. While it is easy to think that this is something you can handle later in life or do not need to address due to your financial position, failing to designate power of attorney in an estate plan can affect people from all walks of life.
Just this past year, Jay Leno actually filed for conservatorship with his wife, showing that they must have failed to pre-plan when she was younger. This just goes to show that no matter who you are or where you come from, you will need to go to court if you wait too long.
How Can A Conservatorship Affect My Family’s Privacy And Control Over My Affairs?
The reason why we always know what’s going on with celebrities and their conservatorships is that all of the related court proceedings are public. This is why we know a lot about Jay Leno and the medical issues that his wife is facing, because he needed to present her case publicly in front of a court to receive the authority to make decisions for her.
Similarly, we know that Britney Spears was unable to make decisions about birth control without the permission of her father. These are often private details that many people do not want publicized, but we know about them through the details of the conservatorship proceedings. Even if you are not a celebrity, this is an important consideration as court proceedings are public, so your personal information will become public if a conservatorship proceeding becomes necessary.
It is important to plan your estate in advance to protect the privacy of yourself and your family in the event that you become incapacitated and need someone to make decisions for you.
In addition, if you are the incapacitated person the conservatorship proceeding will be largely out of your control. Since you are likely already incapacitated when your family members initiate the proceeding, the court will likely expect no (or minimal) input from you and proceed to set terms without you.
Attorney Rebecca Sommer is a seasoned lawyer based in Anaheim, CA who has helped countless clients just like you navigate the intricacies of estate planning law. With a wealth of relevant experience, she is prepared to assist you in pre-planning your estate in advance so that you can avoid the risks of failing to plan ahead.
Still have questions? Ready to get started? Contact The Law Office Of Rebecca Sommer today to schedule an initial consultation.
What Are The Perils Of Failing To Preselect A Trusted Person To Handle My Affairs?
If you fail to preselect a trusted loved one to tend to your affairs, the court will appoint somebody if it becomes necessary. In order for the court to make their decision, they will need to follow their typical process of evaluating and verifying whether or not your condition is appropriate for a conservatorship. The court will then evaluate the people in your life to determine who is best suited to make decisions for you and appoint them. It is possible that people will step forward, but this is not guaranteed.
How Can Delays In Estate Planning Increase The Likelihood Of Family Disputes?
This may seem like a straightforward issue, but there are many areas during the process where families disagree with each other. It is possible that family members or friends may start thinking that you should not be considered incapacitated. They may argue that you have good days and bad days, and that can create disputes about whether or not it is necessary to go through the expensive and laborious process of conservatorship. This is a very common cause of family disputes.
Another common area of dispute is over who should be designated as the agent or conservator. It is not uncommon for siblings and family members to become hard-headed and disagree on who should be in charge of the decision-making. Ultimately, failing to leave instructions can lead to a number of disagreements.
Even after a conservator is appointed, it is still possible that disputes could arise over the decisions made by the conservator. Let’s say, for instance, that your oldest daughter becomes your conservator once you are incapacitated. She will make decisions based on what she knows about you, but your other children may argue against these choices. Since establishing a conservatorship for a loved one who can’t make their own decisions is an emotionally charged situation, it is easy for disputes to occur.
If you fail to plan ahead, any of the above scenarios can arise and cause a great deal of discord among your family members. However, creating a comprehensive plan will allow you to dictate terms ahead of time and leave clear instructions. This way, you can determine things such as who will make decisions on your behalf, their scope of authority, and who will decide if you’re incapacitated. Clearly defining your wishes in your estate plan can greatly help to eliminate the tension caused by familial disputes.
How Might Incapacitation Impact My Ability To Make Decisions?
The term incapacitation is most commonly used regarding medical decisions. Your doctor will usually identify when you are losing medical agency, as they frequently need informed consent before administering treatment. When they determine that you are no longer capable of making medical decisions for yourself, it is time for a medical agent to step in.
However, incapacity can also refer to your ability to make informed financial decisions. If you are in a position where you can no longer manage your financial and logistical affairs on your own, it could be time for someone to step in. Financial incapacitation does not have to be due to any kind of serious condition, as you can be taken advantage of by scammers and accidentally volunteer important information if your mental capacities slip.
What If I’m Incapacitated And No Power Of Attorney Is In Place?
If you do not have a power of attorney, advance healthcare directive, or trust in place, it will be too late to do so once you have become incapacitated. However, there are options depending on how much preparation you’ve done.
If you have some of the essential documents in place, but failed to complete a comprehensive estate plan, it is possible that your completed documents will provide someone with enough authority to take action to protect you and your estate without court involvement. For example, if you have a trust and a power of attorney in place, but failed to put your house into the trust via deed, your power of attorney may provide your agent with sufficient authority to place your house into your trust. However, relying on something like that is very risky.
If you have become incapacitated without completing any of the necessary documentation, no action can be taken on your behalf without a court proceeding. Unless somebody is selected in court to make decisions for you, everyone will stand around in limbo. The court (and most institutions, organizations, and professionals) will not take somebody’s word and grant them authority without following the full legal process.
How We Help Clients Who Have Delayed Their Estate Plans
Many of my clients have delayed their estate plans, and they often tell me that they wish they started sooner—especially once they experience the peace of mind that comes with having a well-thought-out plan.
Some clients who approach me because a family member has been hospitalized without planning in advance or they have lost someone close to them at a young age and would like to help handle their affairs. Throughout the course of these cases, there is generally a wake-up call for many people to pay more attention to their estate plans.
In some cases, it is already too late, and there is not much we can do without going to court. In these scenarios, families either need to go to court for a conservatorship or go to court for probate proceedings over an estate.
Previous clients have reported experiencing great peace of mind after learning about the options available to them. The process can seem intimidating, but it is generally far easier than expected and can greatly benefit your unique family situation. After talking with a member of our team, you may learn about options for preparing your estate that you never knew were available to you. Generally, the process of working with an estate planner ends up being far easier than many people think, and they wish they had done it sooner.
Still Have Questions? Ready To Get Started?
For more information on Risks Of Delaying Estate Planning, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 571-1241 today.
Attorney Rebecca Sommer is a seasoned lawyer based in Anaheim, CA who has helped countless clients just like you navigate the intricacies of estate planning law. With a wealth of relevant experience, she is prepared to assist you in pre-planning your estate in advance so that you can avoid the risks of failing to plan ahead.
Still have questions? Ready to get started? Contact The Law Office Of Rebecca Sommer today to schedule an initial consultation.
