The legal device that is called a power of attorney is often used within the elder law realm. However, a certain type of power of attorney is utilized to account for possible incapacitation late in life.
Many elders become unable to make sound decisions on their own at some point in time. There are numerous different underlying causes of incapacity, but one extraordinary threat is Alzheimer’s disease. This disease strikes almost half of people who are at least 85 years of age.
This type of longevity is not uncommon during our current era. According to the Social Security Administration, it is likely that you will live until you are at least 85 if you are fortunate enough to be around when you are 67 years of age.
As you are probably aware, a power of attorney can be used to empower someone to act on your behalf in a legally binding manner. In our area of the law, durable powers of attorney are used. This type of power of attorney would remain in effect even if the grantor was to become incapacitated.
In the state of California, a conservator could be appointed by the court if you were to be deemed incapacitated without taking any steps in advance to prepare for the contingency. On the other hand, if you execute durable powers of attorney, representatives of your own choosing would be in place to act for you if it ever becomes necessary. As a result, a conservatorship proceeding would not be necessary.
We should point out the fact that we are using the plural here because people will typically execute two different durable powers of attorney. One document would be used to name someone to handle health care decision-making, also known as an advance health care directive, and the other would be a durable financial power of attorney.
Termination of Power of Attorney
A durable power of attorney will terminate automatically upon the death of the grantor of the device. As a result, the financial agent would not be automatically empowered to handle your estate. This is a bit inefficient, because the financial representative would be uniquely poised to administer your estate.
A better option for many would be the creation of a revocable living trust. The trustee that you name to administer the trust after you pass away is typically also empowered to handle the administration tasks in the event of your incapacitation. As a result, you would be achieving dual objectives in one fell swoop.
Incapacity Planning Is a Must
As you can gather from the information that we have passed along here, incapacity planning is a must for all responsible adults who want to be prepared for the eventualities of aging. If you are ready to take action, send us a message through the following page to schedule a consultation: Sacramento CA Incapacity Planning Attorneys.
Latest posts by Timothy P. Murphy (see all)
- Is It Hard to Contest a Will? - January 15, 2019
- What Are the Rules of Intestacy in California? - January 13, 2019
- Estate Planning for Adult Children Suffering from Alcoholism - January 11, 2019