Estate planning is not always about what happens to your property after you die. You should also plan for unforeseen, unfortunate incidents. Life takes its toll on people, and bodies are fragile. Sometimes you can lose the ability to care for yourself when you are still alive.
When we discuss someone who is “incapacitated,” we often imagine a completely immobile, vegetative state. This is an accurate image, but there are many ways a person can be debilitated. Sometimes age or injury can affect brain functions, making certain decisions difficult. It is still possible to be independent and functional, but someone may just have a harder time.
Incapacitation is not always related to your mind. People with injuries or chronic health conditions may have no capacity to deal with a job, money, and the like. All their energy is focused on maintaining themselves and simply trying to feel better.
Whatever the reason, when you cannot manage your money or your health, you need to appoint someone to do it for you. In California, this can be achieved in two ways, with a durable power of attorney and an advanced healthcare directive. One manages your finances, and the other handles your health.
Durable Power of Attorney
In California, power of attorney grants someone power over your finances. This person can manage anything related to your money. They can buy and sell property for you, including real estate. They can make investments in your name, and they can sue on your behalf. Depending on the size of your estate, your power of attorney can have an enormous responsibility. Managing your assets could be their full-time job, and they may need to sustain themselves through your estate. Clearly, you must grant this power only to someone you trust. It may be wise to hire outside counsel to watch over their actions as well.
You can put restrictions on power of attorney. You could, for example, determine when it becomes active and how. For some, they will grant power only if they are comatose or in a vegetative state. Others may have less stringent standards. You can require that power of attorney is transferred only when you agree to it. Ultimately, you still have all the power in this situation.
The word “durable” can be misleading. Power of attorney is not rigidly transferred without alteration. Durable power of attorney can be changed. If you begin to regain your faculties, or if outside advisors believe that you are being taken advantage of, you can alter the deal. You could even keep the directives the same but transfer power to another person. You are not stuck with whatever choice you originally made.
Advanced Healthcare Directives
Healthcare directives give someone decision-making power over your healthcare. They can manage your prescriptions, talk with your doctors, oversee medical visits, etc. They can even give consent for surgeries.
Like power of attorney, you can decide how much or how little power a healthcare directive gives. If you are uncomfortable with someone consenting to your surgery, you can deny that authority. You can also decide when the power transfers. For example, you can stipulate that power is granted only if you are consistently confused over a certain length of time. Perhaps you want to mandate that it transfers only if you are uncommunicative. The choice is yours.
With an advanced healthcare directive, you can also make decisions about life support. You can choose whether you want to be kept alive via ventilator. You can decide now how far gone you must be before life support ends. Many people prefer to have life support cut off if they are in a permanent vegetative state, for example. You can also determine how to handle home or hospice care, if that day comes.
These determinations can be changed, especially when the original plan no longer applies.
Seek a Trustworthy Advisor
When you create a power of attorney, advanced healthcare directive, or both, consider including outside legal counsel. Even the most trustworthy people need an overseer. With so much responsibility placed on one person, it can be easy for them to make mistakes, even when their intentions are pure. Hiring a law firm to watch someone with power over your life can provide peace of mind. The firm can advise you on when and if the terms much change. In turn, the person you appoint can keep an eye on the firm. Having more people working together will ultimately go toward your benefit.
If you need help creating a power of attorney or advanced healthcare directive, contact our firm today. Our number is (916) 299-3936, and you can reach us online.