Planning for Incapacity
CunninghamLegal – The Living Trust Lawyers
Planning for Incapacity
“I’d like to do a power of attorney for my mother who has dementia.” This is the type of request that I sometimes receive from a prospective client calling our office. In these cases, a conservatorship is the only option. An estate plan is not just for efficiently passing on wealth to the next generation, asset protection, or for saving taxes. An often overlooked reason for also executing an estate plan is planning for incapacity.
You can plan for incapacity by giving someone authority to act on your behalf in the event you are unable, thereby bypassing the need to establish a conservatorship in probate court.
What is a conservatorship?
Simply put, a conservatorship is a court process where a judge appoints an individual (the “conservator”) to care for an adult who lacks the capacity (the “conservatee”) to care for his or her own finances and/or wellbeing. The key downside to a conservatorship is that a judge is choosing the conservator, not you. Other major downsides include significant time delays, costs and loss of privacy.
If you have ever attended a conservatorship proceeding, you understand that it is not a pleasant process. Private details are discussed in public to an open audience of spectators and people waiting for their matter to be called. Oftentimes, there are disputes between family members over who should be named conservator. With proper advance planning, a conservatorship proceeding is almost always not necessary.
Alternatives to Conservatorship
Less restrictive alternatives to a conservatorship are available, but only with advance planning while an individual still has the legal capacity necessary to execute certain documents. These documents which can prove to be invaluable in the event of incapacity include a durable financial power of attorney, an advance health care directive and a trust. With these documents, you are naming someone who you want and trust to take care of your financial affairs and make health care decisions for you in the event you are unable.
We invite you to contact us any time for an appointment with our legal and tax experts to talk about preparing for incapacity. We have offices throughout California, and we offer in-person, phone, and Zoom appointments. Just call (866) 988-3956 or book an appointment online.
James Cunningham Jr., Esq.