Are you sure you won’t need a conservatorship?
What is a conservatorship? In simple terms, a conservatorship is a way for someone to assume legal guardianship over an adult when that adult can no longer take care of themselves or manage their affairs due to incapacity.
Conservatorships follow the laws in the California Probate Code. Yes, this is the same probate code that deals with the administration of your estate when you die. A conservatorship is sometimes called a “living probate.”
Families often use conservatorships to help deal with aging parents' mounting medical, financial, and mental health needs. But, statistically, 80% of us will go through some form of incapacity in our lives, not necessarily in our old age. It's essential to plan for the possibility of incapacity as part of your estate planning.
Why should you try to avoid a court-supervised conservatorship?
If you plan correctly, you can have a say in who will serve as your conservator if one is ever needed. This way, the court will appoint the person you nominate unless he or she is unable or unwilling to serve, or the court finds substantial reason to disqualify that person. In the absence of a designation, the court will choose. Typically, the court will choose a relative or friend who is willing and able to carry out a conservator's duties. However, you will no longer have a say in who it is.
Having a say should be important to you because once the court chooses a person to be your conservator, they will have control over your life. They can decide where you live, who can visit you, and whom you can see, and if you own firearms, they will take them. They will also have the power to put you in an institution against your will and make all medical and financial decisions for you. Have you heard of Britney Spears?
The way to avoid a court-supervised conservatorship is to plan for it yourself when you are healthy and well. Create an estate plan that includes not only the appropriate incapacity documents but also a living trust. In your estate planning documents, you will nominate multiple people that you trust to handle your medical and financial affairs if you ever need it.
As a reminder, these are the essential estate planning documents you need:
Durable Power of Attorney for Property
Advance Healthcare Directive (Power of Attorney for Healthcare)
The first three documents are those that deal primarily with incapacity. They give power and access to those you choose in the event of your incapacity. Every adult over 18 needs them because we are all at risk for incapacity (this includes young adults in college, by the way!). The last two documents complete a basic estate plan and deal more directly with death planning.
Each of these documents is powerful. When done correctly, they work together to protect you when you are alive but perhaps not healthy and help you preserve and pass on your legacy when you die. Don’t leave things to chance or a court. Make your choices while you are alive and healthy. Meza Talbott Law is here to help to make the process of estate planning as effortless as possible.
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