When an adult becomes unable to handle all of his or her own affairs due to incapacity or impairment, the court can appoint a person to handle the personal and financial affairs of the incapacitated person. In many states the is called a guardianship. In California, a guardianship is a legal proceeding involving a minor and a conservatorship is a legal proceeding involving an adult. The conservatorship can be for personal affairs only, called a conservatorship of the person. Or it can involve the financial affairs of the incapacitated person, which is referred to as a conservatorship of the estate. It can also be both a conservatorship of the person and estate. A conservator of the person can be appointed and a different person can be appointed as conservator of the estate, or the same person can serve in both roles.
There is also a general conservatorship and a limited conservatorship. With the former variety, the conservator would have sweeping powers to act on behalf of the incapacitated adult. The limited conservatorship is typically used for persons with developmental disabilities in order to preserve some ability for that person to make personal decisions.
Conservatorship attorneys can be involved in this process as a link between the individual, the family of the person that requires assistance, and the court. In some cases, a conservatorship will become necessary suddenly after someone is stricken by a devastating illness, and injuries that are sustained in accidents can also generate the need for a conservatorship.
Elder Law Perspective
Our firm focuses on elder law and estate planning matters. We assist clients that are preparing for the eventualities of aging and incapacity while also planning for asset transfers to their loved ones after death. Retirement planning can be a part of the equation. The cost of long term care is a looming threat that all people should be very well aware of as they prepare for tehir futures, because the impact can be devastating on a number of different levels.
Generally speaking, longevity sounds like a good thing, and people are in fact living longer and longer lives. According to the United States Census Bureau, the segment of the population comprised of Americans between the ages of 85 and 94 grew faster than any other ten-year age demographic subset between the last two censuses (in 2000 and 2010). Statistically speaking, if you were born in 1960 or after and you live long enough to receive your full Social Security benefit, it is likely that you will live until you are at least 85.
When you get into this age group, Alzheimer’s disease and dementia becomes a very real threat. If you want to learn more about this disease, you can get more information from the Alzheimer’s Association website. They have found that approximately 4 out of every 10 people that are 85 years of age and older will be affected by this disease.
Clearly, if you have Alzheimer’s disease or another form of dementia, you will eventually be unable to make sound financial and health care decisions on your own. Of course, there can be other reasons why you may not be in a position to take care of your affairs effectively.
Getting back to the matter of conservatorship, the court could be petitioned to appoint someone to act on your behalf if it was to become necessary due to Alzheimer’s disease or some other underlying health condition.
This would be disconcerting for most people. Various family members can have different ideas with regard to the choice of a conservator. You can nominate the person to serve as your conservator, but you must have capacity in order to do so. The proposed conservator must also qualify to serve. Generally, he or she must not have been convicted or a felony, not have any recent bankruptcies and be capable of being bonded. If no conservator is nominated, various persons can petition the court to be appointed. This can lead to arguments and personal acrimony that can have a debilitating impact going forward.
You can take control of this potential scenario in advance through the execution of legally binding documents called durable power of attorney for property during a period of time when you have the mental capacity to do so. An advance health care directive allows you to appoint someone to make medical decisions on your behalf should you ever become unable to make them on your own. You do not have to choose the same person to act as agent for each respective power of attorney.
There are a couple of other incapacity planning documents that should be included in a well-rounded estate plan. Medical professionals are not allowed to release records to anyone other than the patient because of federal and California HIPAA statutes (Health Insurance Privacy and Accountability Act). You could sign a waiver to allow your health care representative, or anyone else, to see your medical records and discuss them with the health care professionals.
We Are Here to Help!
If you would like to speak with us about conservatorships, incapacity planning or any other elder law or estate planning matter, we would be glad to help. Simply give us a call at 951-888-1462 to set up a consultation that conveniently fits into your schedule.
Have a question? Ask Dennis.
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