Who Should Make Decisions for You
When You Can’t?
By Lois Kelly
....A person who is close to the point in their lives where they may need a caregiver should plan ahead for someone they trust to make decisions about healthcare and/or finances when they can no longer do so for themselves. The elder needs to execute specific legal documents while he or she has still the mental capacity to do so.
...The elder can execute a springing power of attorney, which ensures that the elder will remain in charge of his/her own finances until two doctors declare the elder cannot do so. Once incapacity sets in, the agent chosen by the elder can take over money management. If the elder recovers capacity, two doctors can attest to that change in mental capacity and the power of attorney will no longer be valid.
...A power of attorney which ‘springs’ into effect only when an elder loses capacity is preferred over an immediate power of attorney. The springing power of attorney acts as a safeguard against unscrupulous caregivers who may use the immediate power of attorney to drain an elder’s financial resources by liquidating assets or selling the elder’s home to themselves at a bargain price.
...Everyone over 18 may execute an Advanced Health Care Directive. This document allows a person to list his or her directions for the agent to follow regarding health care decisions. The agent has a duty to follow the elder’s wishes as outlined in the Advanced Health Care Directive. If the agent does not know what the elder would want because the situation is not covered by the Advanced Health Care Directive, the agent must make a decision based on the elder’s best interest. It is important that the elder discuss his or her wishes with the appointed agent to be sure they are both in agreement regarding treatment.
....Once an elder loses mental capacity, he/she cannot execute the above documents. A caregiver’s ability to take care of the elder’s health care or financial needs can be difficult. If the caregiver is a spouse, the spouse can go to Probate Court and file a “3100 Petition” to obtain the court’s authorization to put all of the community property of the marriage into the healthy spouse’s name so that the caregiver spouse can manage, control or dispose of property in order to take care of the ailing spouse.
...Adult children caregivers do not have this option. The children of the elder will have to seek a conservatorship in court in order to manage the personal and real property of the elder. It is important to speak with an attorney to be sure the conservatorship is necessary. If the elder has only Social Security and Supplemental Security Income (SSI), the adult child can become the representative payee and pay the elder’s bills. If the elder has other sources of income and owns real property, and has not executed a power of attorney for finances, there is no other choice but a conservatorship.
...A conservatorship is where the court appoints a person as a conservator to make themedical and/or financial decisions for an incapacitated person. This is a lengthy process and once granted will continue until the elder dies, unless the conservator seeks a termination of the conservatorship. A conservatorship requires a capacity declaration to be signed by a doctor stating the elder no longer has the capacity to make his or her own medical decisions. The costs associated with obtaining a conservatorship are significant, but if the elder has little income, the court fees may be able to be waived.
...Once the conservatorship is granted, there are still documents to file each year. Ninety days after the conservatorship is granted, an Inventory and Appraisal has to be filed. An accounting of finances received and expended must be done yearly and a court investigator will reexamine the conservatorship each year until the conservatee dies. These reports and investigations have been put in place by the judicial system to safeguard the conservatee and protect the elder from financial elder abuse.
...Any San Diego resident over the age of 60 may obtain a springing power of attorney and an Advanced Health Care Directive.
About the author: Lois Kelly has been an attorney for more than twenty-five years specializing in litigation. She has practiced in the area of Elder Law for the past thirteen years and for the past eleven years has assisted caregivers with their issues including filing for Conservatorship. Ms. Kelly helped establish a free Conservator Guardianship Clinic in Imperial county which is still on going.
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