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Los Altos Estate Planning — Planning for Incapacity

At Kramer Radin, LLP, we are frequently contacted by family members or friends who are concerned about the well-being of a loved one. Sometimes a person has suffered an accident or a stroke, or has been incapacitated as the result of an illness, such as Alzheimer’s or another form of dementia. Unfortunately, incapacity can impact anyone. Even the young can become incapacitated as a result of an auto accident, head injury or other medical condition.

Estate Planning for Incapacity

Most people equate estate planning with death planning; they understand that estate planning documents specify who will administer their estate upon their death, and who will receive the assets of their estate. Many people do not realize that a comprehensive estate plan also provides a plan for incapacity. Documents such as durable powers of attorney and advance health care directives allow a person to specify who will make financial and medical decisions on their behalf in the event of incapacity. In the event an incapacitated person has not created these estate planning documents, it may be necessary to petition the Court for a conservatorship of the person and/or the estate. See our Conservatorships page for further information.

Financial Powers of Attorney

A Financial Power of Attorney is a document that allows you to appoint a representative to make certain financial decisions and conduct certain financial transactions on your behalf, such as paying your bills, filing your tax returns, or buying or selling your property. The powers granted may be very broad in scope or they may be limited for a specified period or certain task, such as authorizing someone to complete the sale of your residence while you are on vacation.

The power of attorney may be effective immediately upon signing or it may only become effective upon your subsequent incapacity. A “durable” power of attorney will last until it is cancelled or until you pass away; it is not affected by your subsequent incapacity.

Advance Health Care Directives

In California, an Advance Health Care Directive (formerly known as a Health Care Power of Attorney) is a document that allows you to specify a person who will make health care decisions for you in the event that you cannot do so because of incapacity or another reason. This document allows you to give instruction on the type of health care you would prefer in different situations, such as whether or not you would want surgery, a blood transfusion, or to be on life support. It also allows you to specify whether or not you would like to donate your organs and can be a very valuable tool for expressions of personal preferences and wishes for a time when you cannot make such expressions yourself.

Financial powers of attorney and advance health care directives are an essential component of an effective estate plan. By planning in advance for the possibility of incapacity you may avoid the need for a costly and time-consuming conservatorship proceeding.

If you need assistance with an estate planning or elder law matter, contact Kramer Radin, LLP for a consultation.