What are alternatives to a conservatorship?

| Jan 27, 2021 | Conservatorship |

will document

A California conservatorship can be an excellent way to help ensure that your loved one’s health and financial interests are protected. However, creating a conservatorship involves asking a court to appoint another person to be your loved one’s conservator and make decisions on his or her behalf. Not every situation requires this level of intervention. The good news is that there are ways to safeguard your loved one’s well-being while maintaining their autonomy. What are alternatives to conservatorship?

The Advance Health Care Directive

In California, the Advance Health Care Directive is a legal device that can be used for multiple purposes.

  1. First, the directive can identify a medical decisionmaker. This person will be responsible for making decisions on behalf of the person who created the directive if they become incapacitated. The incapacity could come through a sudden illness or accident or a gradual decline in the person’s decision-making abilities. It’s not always possible to predict when a person may become incapacitated, and it’s vital to be prepared.
  2. The Advance Health Care Directive also allows its creator to leave specific care instructions for their medical treatment providers. This can include instructions about blood transfusions, life-saving interventions, or any other care preferences the individual may want to communicate to their physicians. The medical decisionmaker will also be responsible for ensuring that treatment providers observe the individual’s care preferences.

Your loved one’s California Advance Health Care Directive will become effective if your loved one loses capacity. Having this critical document in place can prevent delays in making treatment decisions. Further, you can avoid having to request a conservatorship of the person to obtain medical care for your loved one.

California Power of Attorney for Finances

A power of attorney for finances can be used to give another person the authority to become the creator’s attorney-in-fact or agent. The attorney-in-fact does not have to be a lawyer. This only means that the named person will have the power to step into the creator’s shoes and make financial decisions on their behalf. This document can be as broad or limited as the creator chooses. For instance, if the person wants to limit a power of attorney to their personal banking accounts, the document would be structured to reflect that preference. Likewise, suppose the creator wanted their agent to have the authority to manage their business finances and investment decisions. In that case, the document could create terms to that effect.

A Living Trust

Another option is for the individual to create a living trust and ensure that it is adequately funded to provide for their needs. The testator can serve as the trustee and receive benefits from the trust during their lifetime. The trust can be drafted with an incapacity provision. That way, if the individual serves as the trustee of their own trust, they can be removed if they become incapacitated. If the trust does not have an incapacity provision, concerned parties would have to take the matter before the court and request that the trustee (testator) be removed.

While using a living trust can help avoid a conservatorship of the estate, it will not address issues related to a conservatorship of the person. Suppose the individual cannot care for their physical or medical needs. In that case, they may still require a conservatorship of the person.

Spousal Transfers

When a couple is married and owns community property, and one spouse lacks the capacity to sign the necessary documents to sell real estate or complete other financial transactions, it can leave the other spouse with few options. There can also be problems with separate property or community property that is only in the incapacitated spouse’s name. Fortunately, California law provides that under certain conditions, a spouse may not have to file for conservatorship over their incapacitated spouse in order to access bank accounts, refinance, or transfer real estate ownership.

Contact a California Estate Planning Attorney

At the Law Offices of Alice A. Salvo, we are experienced California special needs planning attorneys who can help you evaluate your situation and consider the conservatorship alternatives for your loved one. Contact us today to schedule your free consultation. https://www.salvolaw.com

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