As a probate law firm, we have a thorough understanding of matters that are handled by the probate court. This court serves a very valuable purpose, but strangely enough, it can be a good idea to avoid it in some cases, and this can be done through the proper planning.
One role of the probate court would be to appoint a conservator if it ever becomes necessary. This is an individual that would be empowered to make decisions on behalf of an incapacitated adult. The clients we serve reside mainly in Riverside County and San Bernardino County. There are two main types of conservatorships — a conservatorship of the person and a conservatorship of the estate. Conservatorships of the estate deal primarily with the management of a person’s assets and finances. Conservatorships of the person deal with management of personal decisions, such as healthcare decisions, where a person resides, who a person associates with, and what activities a person engages in.
There are people with developmental disabilities, brain trauma and mental illness who can mane some decisions relating to their personal and financial affairs, and these individuals can receive the assistance that they need through a limited conservatorship. Others that have no ability to take care of any decision-making at all would be better served by a general conservatorship. Under these circumstances, the conservator would make all decisions on behalf of the impaired individual.
Preparing for Incapacity in Advance
Statistics show that younger adults are woefully unprepared when it comes to estate planning. This is understandable on one level, but in fact, unexpected circumstances can befall anyone at any time. Certainly the case of Terri Shiavo is evidence of this. Many people in their 30s and 40s have dependent children, and families typically rely on two incomes to make ends meet. In a very real sense, it could be argued that estate planning is more important for younger people than it is for older adults who have grown, self-supporting children.
Older people that are planning ahead to address the eventualities of aging have another consideration. Alzheimer’s disease and other forms of dementia is something we have all heard of, but many people are quite surprised when they hear about its widespread nature. Approximately 4 out of every 10 Americans that are at least 85 years of age have contracted the disease. This is the fastest-growing segment of the population, and it is statistically likely that you will live into your mid-80s if you live long enough to receive your full Social Security benefit.
When you are planning your estate, regardless of your age, you could include an incapacity planning component. This should include the execution of a durable powers of attorney. Durable means that the power of attorney is still effective even if your become incapacitated. An advance health care directive allows a designated agent to make decisions regarding your personal care and your health care in the event you can’t make these decisions for yourself. A third document that is a very important component of incapacity planning is the HIPAA pre-authorization form. HIPAA, or the Health Insurance Privacy and Accountability Act is a federal law designed to protect the release of your private medical information to other persons. While the act was well intended and serves many good functions, many doctors, hospitals and laboratories take HIPAA beyond what was intended and refuse to share vital health care information with your duly appointed health care agents in a time of need. The HIPAA pre-authorization form waives your HIPAA rights as they relate to your advance health care directive and health care agents and allow your doctor and other health care professionals to discuss your health care situation with your designated agent without fear of violating the HIPAA law.
Conservatorships are only supposed to be imposed when there is no viable, less restrictive alternative in place. If you have a properly executed durable power of attorney, advance health care directive and HIPAA pre-authorization form, signed by you during a time when you clearly had capacity, the probate court would likely determine that a conservatorship is not necessary because your pre-planning is clearly a less restrictive viable alternative. if the documents are not in place or they are executed during a time where your mental capacity is questionable, it is much more likely that a conservatorship may be pt in place.
Powers of attorney and advance health care directives allow you to designate the persons you wish to make decisions for you in the event of incapacity. They also reduce the chance of an imposition of a conservatorship of the person or a conservatorship of the estate, should you become incapacitated. Stating your wishes in these documents also gives your designated agents priority to be appointed conservator in the event family members disagree about your care and there is a contested conservatorship proceeding being hear by the Riverside Probate Court or San Bernardino County Probate Court.
You should certainly understand all the facts so that you can plan ahead to protect yourself, your family, and your legacy. Our probate law firm places an emphasis on education, and to this end, we offer monthly webinars on various subjects. You can learn a great deal if you listen to one of our webinars, and it is absolutely free to do so.
To register to listen to one of our webinars, click the “Attend a Webinar” button in the upper right corner of our website.
Have a question? Ask Dennis.