The Importance of Incapacity Planning During the Coronavirus Pandemic
The spread of coronavirus has caused many Sacramento residents to think about incapacity planning. Many California counties are under lockdown, including Sacramento, Los Angeles, Ventura, and Palm Springs. Additionally, California’s governor issued a shelter-in-place order to all California residents. The coronavirus is highly contagious and has caused over 20,000 reported deaths, more than any other country. Now is an opportune time to spend some time on incapacity planning.
What is the Definition of Incapacity in California?
The first step in the process of incapacity planning is determining what incapacity involves. Under California law, an individual is incapacitated when he or she is unable to perform certain actions or make decisions. At least one of the mental functions mentioned in California’s statute must be impaired or lacking. These mental deficiencies can result in the following:
- The presence of hallucinations or delusions
- An inability to communicate with others
- An inability to understand others
- Problems recognizing familiar objects or people
- An inability to be able to control one’s mood, resulting in inappropriate actions according to the circumstances
- Failure to appreciate or understand the consequences of one’s actions
When a person becomes unconscious or is in a coma, that person clearly meets the definition of incapacity. In other cases, it is not as obvious whether or not the definition of incapacity has been met.
Who Determines Incapacity in California?
In California, a treating medical doctor will initially determine whether a person is incapacitated or not. When a dispute arises as to whether or not a person in incapacitated, a California judge will decide. Judges will typically review the person’s medical records to confirm how severe the periods of impairment have been. If someone contests the incapacity determination, the court may choose to order an independent medical examination that will either be in dispute or justify the judge’s findings.
Once a court determines that a person is legally incapacitated, a conservatorship will usually follow. Conservatorships are legal processes that are court-supervised. In the conservatorship process, a court will appoint someone to manage the affairs of the incapacitated person and, possibly, care for the incapacitated individual. Incapacity actions are necessary but complicated. By setting up a springing power of attorney, or by creating an advance healthcare directive, you can choose an agent to manage your affairs should you become incapacitated.
How to Plan for Incapacity in California
Nobody likes to think about what will happen when they need assistance to manage their financial and personal affairs. But, incapacitation can happen to anyone without warning. Taking the time to plan for your incapacitation can have a profound impact on your family. There are several different ways you can protect yourself should you become physically or mentally incapacitated.
Creating a Power of Attorney
In a power of attorney document, you will appoint someone else to manage your financial affairs and legal matters. A power of attorney document is separate from a will or a trust. California statutory law allows a power of attorney agent to act on your behalf in most areas. If you anticipate needing broader authority, you might need a non-statutory power of attorney.
Creating a Trust in California
More people than ever are creating trusts to protect themselves and their assets. At the Law Office of Daniel Hunt, we can help you create a trust that will allow a trustee to manage your assets in the event that you become incapacitated. You can choose who to select as a trustee. Your trustee must manage your assets according to the instructions in the Trust Agreement.
Creating an Advance Healthcare Directive in California
Advance Healthcare Directives allow you to state your preference for end of life treatment, the disposition of your remains, and whether or not you would like to donate your organs. Creating an Advance Healthcare Directive will help you and your loved ones. It will ensure that doctors take action according to your wishes. It will also help your family because they will know what you would like to happen ahead of time. None of your close family members or friends will need to guess what you would like to happen.
Coronavirus is Causing Many People to Create Advance Healthcare Directives
The best time to talk about Advance Healthcare Directives is now. All Americans are at risk of contracting the coronavirus. Those who do may face serious health consequences. Currently, the United States has more cases of COVID-19 than any other country and the numbers are growing. Many Americans are dying in hospitals while on ventilators. Those who are hooked up to ventilators are unable to speak or engage in conversation. They make it impossible to make their wishes known and tell doctors what they would like to happen.
Discussing the need for an Advance Healthcare Directive can be very challenging. The topic of whether or not you would like a doctor to place you on a ventilator can be uneasy, especially during a pandemic. Very few people have discussed their end-of-life care wishes with other people. However, when you make a decision ahead of time, doctors will keep your quality of life consistent with your patients.
When you are extremely sick, you will not want the additional stress of end-of-life decisions. Your loved ones will also undergo an incredible amount of stress as they witness you face a terminal illness or experiencing another medical emergency. Once you create your advance directive, it will become enforceable. It is wise to create several copies of the documents while keeping the original in an accessible place. Your loved ones should know where a copy can be found and give copies to your healthcare agent, as well as your treating physician.
Contact Our Estate Planning Lawyers as Soon as Possible
Daniel Hunt is lead attorney and owner at Law Offices of Daniel Hunt. He is also a California State Bar Certified Legal Specialist in Estate Planning, Trusts & Probate Law.