There are several planning tools at our disposal to help clients handle the often times very unpleasant idea of what happens to both our finances and ourselves if something horrible should befall you. Ones of particular urgency are executing documents for durable power of attorney and advance health care directives.
A durable power of attorney (DPOA) is a legal document granting authority to a representative to make various decisions on the principal’s behalf, such as financial or personal care matters if the principal becomes incapacitated. Whereas, the DPOA speaks to any matter pertaining to the personal care of the principal such as residency, food, business, transportation, etcetera, the advance health care directive (AHCD) prepares instructions specifically for health care events should they become incapacitated or have a terminal illness (Herzberg & Zuckerman, 2016, p. 40).
Luckily, “California passed the Natural Death Act in 1976, becoming the first state to pass a law on living wills.” (Galambos & Starr, 2016, p. 229). This allowed people to outline their desires and aide in decision making during medical events in which they could not otherwise provide their input. According to Disability Rights California (2000), the advance directive is made of two coinciding parts 1) naming of an agent and 2) the care instructions however, it is not necessary to name an agent in order to complete the directive in which case doctors would be responsible for caring out the directive (p. 1).
To take this idea a step further, these documents can be instrumental if you care for an elderly parent. In the State of California, if your elderly parent was deemed incompetent without a properly executed advance health care directive (AHCD) or having given you a durable power of attorney (DPOA), you would need to ask the court, through the Conservatorship Court Process, to name yourself as your parent’s conservator. This is a lengthy and complex process that begins with completing and filing a petition to the courts explaining why the conservatorship is necessary and explaining why alternatives such as the AHCD and DPOA were not available. All of her personal data, including her Doctors’ information, would need to be provided.
Once the petition is filed, notification informing both your parent, as the conservatee, and any other close relatives, that a petition has been filed must be given in writing. Thereafter, a court investigator will discuss your parent’s situation with anyone familiar with their condition. Upon the hearing, a Judge will render a decision based on the facts of the petition. If the petition is granted, you will need to purchase a copy of the Handbook for Conservators from the court as well as complete conservator training offered by the court. Regularly, you will need to report to the court for review and meet with the court investigator as part of his ongoing duties.
I believe it to be in the upmost importance for these documents to be completed and consultation with respective professionals, for example attorneys and doctors, should be concluded right away. Similarly, conversations within the family unit must be had. Time and health are a factor in these instances and taking initiative on them sooner than later will only serve to ensure that the entire family’s wishes are upheld and honored. As always, we are here to help. Contact us today to set up an appointment to discuss end of life and incompetency planning.
- California Courts, The Judicial Branch of California. 2017. Conservatorship. Retrieved from http://www.courts.ca.gov/selfhelp-conservatorship.htm
- Disability Rights California. Advance health care directives. 2000. Retrieved from http://www.disabilityrightsca.org/pubs/508801.pdf
- Galambos, C., & Starr, J. (2016). Analysis of advance directive documentation to support palliative care activities in nursing homes. Health & Social Work, 41(4), 228-234. doi:10.1093/hsw/hlw042
- Herzberg, P., & Zuckerman, J. L. (2016). Planning for your clients' care with advance directives. Journal Of Financial Planning, 29(12), 40-41.