When a loved one becomes unable to care for themselves without assistance, it can be a difficult and emotional time. There are a lot of important decisions that need to be made. If your loved one is still in good health, and you are considering a plan for the future in case they become incapacitated, then there are several options. However, if your loved one has already reached the point of incapacity, the options are fewer.
What are the options if we anticipate incapacity in the future?
When you are planning ahead, there are several legal instruments that can be used, such as a living will, power of attorney and advanced directives. You should discuss all of your options with an experienced incapacity planning attorney in California.
A living will is a legal instrument that allows you to express your wish to die without the use of extraordinary life support measures if you become terminally ill, for example. A power of attorney for health care is a document that gives the person you have chosen to be your agent the authority to make health care decisions for you, if you are unable to make them yourself. A durable power of attorney will remain in effect even after you become incapacitated. An advance directive is a legal document that combines these two principles, providing comprehensive instructions to health care providers regarding your health care. An advance health care directive will ensure that your wishes regarding health care and end of life care are respected.
What if my loved one is already incapacitated, what can I do?
A durable power of attorney or advanced directive should be executed far in advance of significant signs of diminished capacity. Otherwise, it is likely your loved one will no longer possess the mental capacity to execute those legal documents. At that point, guardianship or conservatorship may be your only options.
Once the court has determined that your loved one is incapacitated, a conservator can be appointed. If you are appointed as conservator, for instance, you will have a fiduciary duty to act only on behalf of your loved one and in his or her best interests. As conservator, you will be able to decide how to spend his or her money, determine all appropriate medical treatment, and make living arrangements.
As conservator, however, you will not be free to take any action you want. Your job is protecting your loved one and his or her assets. Conservator’s remain under court supervision, which means you are required to seek and written permission from the court before making most decisions. Withholding life-saving medical procedures or changing your loved one’s residence would require prior court approval. As conservator, you will also be required to make annual reports to the court, providing the status of your loved one and his or her affairs.
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