4th Aug 2010

An incapacitated person is deemed to lack legal ability to act; i.e., make legal decisions, sign documents, enter into agreements, etc.

There are 3 principal ways to protect yourself in the event of incapacity.  The 3 protections are to execute (1) a living trust; (2) an Advance Health Care Directive with Power of Attorney for Health Care Decisions; and (3) a general and/or special durable power of attorney.

One of the benefits of a living trust is the nomination of a successor trustee who will manage the trust after your resignation, death, or incapacity.   A trustee controls and manages a trust and its assets much like an agent with power of attorney.   Both have a fiduciary responsibility to act on behalf of the trust’s or power of attorney’s creator.  However, while a power of attorney expires upon the death of the principal (the one who created the power of attorney), a trust and its trustee continue postmortem in legal effectiveness.

An Advance Health Care Directive allows you to designate a trusted person to make medical decisions for you in the event that you become incapacitated.  (Probate Code Sec. 4605, 4629, 4682).  You can include detailed instructions regarding your future medical care, such as life-support treatment.  The California Medical Association form is the one I recommend for use in this regard.  It must be notarized or witnessed by two qualified individuals.  A copy can then be given to the health care agent, alternate agent, your doctor, your health plan representatives, and family.  And if you are admitted to the hospital, provide a copy to the hospital.

A durable power of attorney is a written legal document that gives another person the right and authority to act on your behalf.  (Probate Code Sec. 4022) even if you are incapacitated. The power of attorney may be general, giving the agent broad powers, or it can be a special power of attorney giving the agent specific, narrow power.   An example of a special power of attorney would be a form power of attorney for a specific bank that limits the agent’s authority to specific accounts.  

With all of the above decisions, appointing or nominating trustees or agents, be absolutely certain that the trustee or agent is both capable and trustworthy.  

If you have any questions or would like more information about these or other estate planning subjects, please visit my website:    TOMPKINS-LAW.COM 

Dwight Edward Tompkins
Attorney at Law

This blog is intended for informational purposes only and is not intended as substitute for legal advice from a qualified attorney in your jurisdiction. 

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