California law defines incapacity as an inability to make decisions or perform certain acts when at least one of the mental functions referenced in CA Prob. Code § 810-13 (2017) is impaired or lacking. The deficiency or deficiencies can result in:
- Inability to understand or communicate with others
- Problems recognizing familiar people and objects
- Failure to reason logically
- Presence of delusions and/or hallucinations
- Inability to control mood, resulting in actions that are inappropriate in relation to the circumstances
- Failure to understand and appreciate the consequences of their actions
In some situations, incapacity is easy to determine: for example, a person who is unconscious or in a coma cannot pay their bills and direct their own medical care (unless they have an advance health care directive in place). Other times, incapacity determination is a lot more difficult.
What Causes Incapacity?
There are certain medical conditions that can leave a person unable to make responsible decisions for themselves. They include:
- Alzheimer’s disease
Age-induced senility and traumatic brain injury can also affect your ability to manage your own personal and financial affairs. However, a diagnosis does not always result in incapacity. In other words, if you have been diagnosed with Alzheimer’s, you are not automatically “incapacitated” from a legal perspective. That determination is made after a careful and controlled process.
Who Determines Incapacity?
In California, incapacity is initially determined by a treating physician. If there is a dispute about incapacity a court will make the final incapacity determination. When there is no contest to an incapacity finding, the judge normally consults your medical records to confirm the frequency, duration, and severity of your impairment periods. If you or your family members contest a determination of incapacity, the court typically requests an independent medical examination to either justify or dispute the finding.
A determination of incapacity can be followed by a conservatorship, a court-supervised process that names a person or entity to manage your affairs, and, if such arrangements have not already been made, may include the duty to care for you.
Determining incapacity is complicated but necessary, especially in estate planning. This is because some tools, such as a springing power of attorney or an advance health care directive, only take effect when you become incapacitated.
Planning for Incapacity
No ones likes to anticipate a time when they need assistance in their personal and financial affairs, but it can happen to anyone, and planning now can prevent stress and anxiety for you and your family later. The following estate planning tools can establish who manages your personal, financial, and medical affairs if you become mentally or physically incapacitated.
- Power of attorney: Your designated power of attorney can manage your financial affairs (other than those in a trust) and legal matters aside from signing your will. The California Uniform Statutory power of attorney allows your agent to act on your behalf in most areas, but if broader authority is required, a non-statutory power of attorney drafted by a lawyer can grant it.
- Trust: If you become incapacitated, your successor trustee can manage the trust assets strictly in accordance with the instructions in the arrangement.
- Advance health care directives (AHCDs): This document provides direction on important health care matters such as end of life treatment, disposition of remains, and organ transplant. If you include a Health Insurance Portability Accountability Act (“HIPAA”) release, your agent can communicate with your health care providers on your behalf.
Incapacity can set in at any time, sometimes without warning, and result in consequences that are both significant and lasting. When you are proactive with an attorney-drafted estate plan, you can avoid future expense and heartache for your loved ones. Alternatively, if your loved one has been found incapacitated by a California court, an estate planning attorney can represent you during a conservatorship proceeding intended to protect that vulnerable person.
The estate planning and conservatorship attorneys at Solan, Park & Robello understand the importance of preparing for the unexpected. We also know that when a loved one becomes vulnerable, protecting their well-being and assets is extremely important. To schedule a confidential appointment to discuss an estate plan or conservatorship representation, please contact us today.
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