Let me tell you a story (based upon actual events):
“Ron” came into my office seeking advice regarding his mother and father, both of whom had been severely injured in an automobile accident and were in the hospital in critical condition. Ron was one of four siblings. He wanted to know how he and/or his siblings could get control of his parents’ finances while they were unable to do so themselves, and how they could manage health care decisions and living arrangements for the parents who were likely to need long term assistance in the event they survived their injuries.
I asked Ron if his parents had done any estate planning, and specifically if there were “Advanced Medical Directives” or financial “Durable Powers of Attorney” in place. Unfortunately, the answer to my question was “no.”
I explained to Ron that no one would be able to handle his parents’ affairs without conservatorship proceedings, a time-consuming process that requires court approval and formal accountings and is, consequently, quite expensive. Someone would need to petition the court to be appointed as conservator, and if there was disagreement as to who should act as the conservator, the court would be the ultimate decision-maker as to who would best serve the interests of the parents. They needed to hire legal counsel and the process would take valuable time, money and energy at a time when all were in short supply.
The lesson? Life is uncertain, plan ahead.
With respect to health care decisions, properly executed Advanced Medical Directives would have allowed the agent designated by the parents to make all health care decisions and handle living arrangements. The parents, not the courts, would have chosen who they considered to have their best interests at heart, and the parents would have made choices relating to their health care in the document, such as:
- When to remove life support systems
- When to apply pain treatment
- Whether to consent to a medical procedure
- Whether or not to permit an autopsy if the law did not require one
- Whether to permit donation of organs or donations for educational research or education
- Method for disposition of remains
- Adherence to special beliefs (i.e. Jehovah Witness or Christian Scientist clients)
- Desire to stay in one’s home as long as is reasonably possible.
With a properly executed medical directives, there would have been no delays or court involvement, and the agent would have had clear direction from the parents as to their desires.
With respect to finances, Durable Powers of Attorney would have likewise appointed a person that was considered by the parents to be the best choice for taking care of the parent’s finances in the event of incapacity. This durable power of attorney could have been set up to be effective immediately upon signing or to spring into action upon the opinion of physicians that the principal was incapacitated. It would allow the agent broad powers to:
- Collect mail and pay billsDeal with insurance companies and/or medicare
- Manage investments
- Deal with the house (leasing, selling, etc.)
- Make arrangements for payment of long term care costs (including at home care, or residential care in an assisted living or skilled nursing facility)
The financial durable power of attorney would have provided a mechanism for taking care of the parents’ financial matters without the time, energy and money that is required in a conservatorship proceeding.
Advanced Medical Directives and Durable Powers of Attorney are easy and inexpensive to obtain. Although creating these documents is best done as part of a comprehensive estate plan with advice from an attorney experienced in this area, there are forms available online and in office supply stores that simply need to be filled out, signed and notarized in order to be effective under California law. But they have to be done while the principal has capacity to make informed decisions so don’t wait, get it done now!
