What happens if I become incapacitated?
It is important to think about what would happen to you in the event that you become incapacitated. Before we begin to tackle this issue, we have to understand what the word “incapacity” really means. An incapacitated person is one that does not possess the mental capacity to decide on matters related to their property management, finances, health care, and general welfare. Individuals who are in a vegetative state, or suffer from a stroke, brain trauma, dementia, degenerative diseases (such as Alzheimer’s,) and others would qualify as mentally incapacitated.
If you do not have certain documents in place (which will be discussed below,) you could be subject to what is known as a “guardianship and/or conservatorship,” in which the court steps in. The court will have to first assess whether or not you have capacity in a formal court-proceeding. If determined that you lack capacity, the court can appoint someone to be a guardian to make your medical decisions, and a conservator to tend to your financial affairs. These guardians and conservators can be professionals that the court assigns, and who may not have had a personal relationship with you in the past. Friends, relatives, or anyone else interested in becoming your guardian and/or conservator would need to file a petition with the Superior Court, Probate Division, request appointment, and attend a court hearing. This is a costly and time-consuming process that can easily be avoided if certain documents are prepared before incapacity.
- A Durable Power of Attorney form is a specific instrument that becomes effective upon your incapacity, and allows you as the “principal” to designate an individual (or individuals) to act as your “agent” or “attorney-in-fact.” Their duties will relate to making decisions regarding your financial or legal matters You can assign successor agents as well, if your initial agents refuse or are unable to perform their duties. You can decide whether you want your agent to have general or specific/limited rights. Some rights include the right to dispose of, sell, convey, and encumber your real and personal property, pay your bills, file tax returns, and other carry our other financial/legal transactions on your behalf. This instrument provides you with an opportunity to grant these powers to someone you trust, and whose opinion you value, versus having a court-appointed stranger make crucial financial and legal decisions for you.
- An Advance Health Care Directive (AHCD) is a legal document that functions in the event of incapacity, and assigns your named agent(s) the power to make medical decisions for you, sign consent and/or releases with hospitals and/or doctors, and make end-of life decisions on your behalf. If you have already made your decisions regarding end-of-life or anatomical gifts, you can specify your wishes in the AHCD. You also have the option of leaving these difficult decisions up to your named agent(s) to make.
Some individuals choose to have a Dementia Directive prepared in addition to the AHCD with us as well, which is a voluntary Advance Directive pertaining to oral feeding and fluids specifically in the event of dementia. This sets forth your wishes regarding the administration of food and hydration in the event you are suffering from an advanced stage of Alzheimer’s or another incurable, advanced dementing disease.
- HIPAA AUTHORIZATION AND WAIVER: This is a “stand-alone” document to authorize your health care providers to release information concerning your otherwise confidential medical information to the individuals you have listed to act on your behalf and in your best interest in the event of disability (including incapacity.)
Contact a Los Angeles Wills And Trusts Attorney to discuss your needs in relation to a power of attorney, advance health care directive, or a HIPPA authorization and waiver. We have office in Burbank, Pasadena and Santa Clarita and provide remote estate planning services for all of California.