If you have an incapacitated relative who has not made an estate plan, you might not know how to help. Your relative could be facing a host of problems, from getting adequate medical care to paying bills to worrying about the future.
What Is Incapacity?
Incapacity has different meanings legally and practically. Your relative may be stuck in the hospital for a long time, have trouble getting around physically, or be facing a significant mental decline. From a legal perspective, someone who has a mental or physical condition “may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.” A finding of true legal incapacity is usually based on a variety of factors, such as the person’s level of consciousness, memory, ability to think logically, and more.
From a practical perspective, physical incapacity might mean that your relative needs help with personal care, caring for a pet, maintaining a house or apartment, or getting around town. Mental incapacity might mean that your relative needs help paying bills, making decisions, or handling affairs.
Requesting a Conservatorship
If your relative truly has no estate plan (not even a simple power of attorney or will), you might need to step in and request a conservatorship. An incapacitated relative not having an estate plan can be very tough on family, who might not be able to access the relative’s finances or who may not be able to even visit the relative in the hospital until they receive legal permission.
A conservatorship provides the legal permission that family may need to access bank accounts and pay bills, provide input on medical decisions, or handle other affairs for an incapacitated relative. A judge must approve the conservatorship and appoint an appropriate person as conservator (often a family member, close friend, or someone associated with the court). The conservatorship may be limited to medical matters or financial matters only at the judge’s discretion.
If your relative is only incapacitated physically or can still make logical decisions on his or her own behalf, you might talk about signing a power of attorney. A medical or financial power of attorney can allow a chosen agent to make decisions for the relative. However, your relative must have legal capacity to sign the document creating the power of attorney. Talk to an estate planning attorney if you have concerns or questions about capacity and need a power of attorney prepared.
Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.