When your loved one can no longer care for themselves: California conservatorships, Part I

It seems to me that recently I have been inundated with questions about conservatorship in California.  In the Bay Area, much like the rest of California and the United States, there are a large number of aging Americans, including the Baby Boomers, who are getting into their 60s & 70s.  But most of these inquiries have a lot of confusion and misunderstanding about what a conservator is, when it is possible or appropriate to get, why it’s necessary, who can file for one, and what the general process is.

So, let’s start with the basics.  As we age, many of us will gradually slow down. Perhaps this starts with using the stairs in our house less frequently, and maybe progresses to driving less at night.  Our muscles become weaker, our senses a little duller.  We may get a hearing aid for when we’re out in public.  These are all normal ‘symptoms’ of aging.  As we continue to get older, some of us may have cognitive, or mental, decline as well.  This is more than just forgetting where you’ve put your glasses or keys.

At some point, for some of us as we age, we become no longer able to take care of our own finances and our own health.  We can’t pay the bills, remember to take our medication, or even maintain basic hygiene.  Adult children can spot these issues when they see unpaid or overdue bills lying around the house.  Perhaps a caregiver is noticing and reporting the concerns about hygiene or unusual behavior.  Maybe you are talking to an assisted living community about moving your parent in, and they are concerned about your parent’s mental capacity.

Based on your concerns, you may wish to be the one who makes the financial and medical decisions on behalf of your parent.  It may, in fact, be necessary because your loved one has signs of dementia, paranoia or hostility that make them completely unable to care for their own needs.

If you and your loved one have acted in advance, then you may have a power of attorney that will allow you to make the necessary decisions.  In California, there are two kinds of powers of attorney: one for finances and one for medical care.  An individual who signs a power of attorney must be competent to do so, so if you are in a situation where your loved ones is already mentally compromised, or refuses to cooperate to sign one, then a power of attorney is not an option for you.

This is another reason why advance planning is so critical.  If you wait too long and are unable to get your loved one to sign a power of attorney, then you will need to go through the court process of a conservatorship to obtain decision-making power over your loved one’s finances, medical decisions, or both.  Next time we will talk about the conservatorship process. Want more specific information? Use the link at the right to make an appointment with us.

Don’t wait until it’s too late and make this costly estate planning mistake

As our Baby Boomers continue to age, the average age of our population is increasing. There are more older adults in the United States now than ever before.  As a result, I am seeing a lot more clients come to me, generally spouses of someone who is having mobility and dementia issues as they age.  Often, a decision has to be made regarding care and how to pay for the care.  Care in an assisted living community in California can cost $6,000 – $10,000 monthly, or more.  A couple may, for example, be considering a reverse mortgage to pay for care. But to sign paperwork, an individual must have “capacity,” meaning they must not have dementia or disorientation that prevents them from understanding the documents they are signing. Obviously, too, someone who is unconscious cannot sign documents either.

Too often, the couple waits until it is too late.  When a person has capacity, they can sign a Power of Attorney document that allows someone else, usually their spouse, to act on their behalf for their finances, such as to sign documents. Once capacity is lost due to dementia or illness, then a Power of Attorney is no longer an option and to obtain the ability to act on an individual’s behalf requires a conservatorship.

A conservatorship is a court process that gives an individual, usually a family member/spouse, the ability to manage the care and finances of another who does not have capacity to do so on their own. The process can take several months, and the court fees alone are up to $1,200.  Hiring an attorney can dramatically increase this cost.  In contrast, obtaining a Power of Attorney takes very little time and even with an attorney preparing it for you, is not going to be more than a few hundred dollars.

Everyone should have a Power of Attorney for both finances and medical care once they turn 18.  Have you created yours yet?

Don’t wait until it’s too late and make this costly estate planning mistake

As our Baby Boomers continue to age, the average age of our population is increasing. There are more older adults in the United States now than ever before.  As a result, I am seeing a lot more clients come to me, generally spouses of someone who is having mobility and dementia issues as they age.  Often, a decision has to be made regarding care and how to pay for the care.  Care in an assisted living community in California can cost $6,000 – $10,000 monthly, or more.  A couple may, for example, be considering a reverse mortgage to pay for care. But to sign paperwork, an individual must have “capacity,” meaning they must not have dementia or disorientation that prevents them from understanding the documents they are signing. Obviously, too, someone who is unconscious cannot sign documents either.

Too often, the couple waits until it is too late.  When a person has capacity, they can sign a Power of Attorney document that allows someone else, usually their spouse, to act on their behalf for their finances, such as to sign documents. Once capacity is lost due to dementia or illness, then a Power of Attorney is no longer an option and to obtain the ability to act on an individual’s behalf requires a conservatorship.

A conservatorship is a court process that gives an individual, usually a family member/spouse, the ability to manage the care and finances of another who does not have capacity to do so on their own. The process can take several months, and the court fees alone are up to $1,200.  Hiring an attorney can dramatically increase this cost.  In contrast, obtaining a Power of Attorney takes very little time and even with an attorney preparing it for you, is not going to be more than a few hundred dollars.

Everyone should have a Power of Attorney for both finances and medical care once they turn 18.  Have you created yours yet?

What is a conservatorship? Part One: When and why you may want or need to get one

It seems to me that recently I have been inundated with questions about conservatorship in California.  In the Bay Area, much like the rest of California and the United States, there are a large number of aging Americans, including the Baby Boomers, who are getting into their 60s and older.  But most of these inquiries have a lot of confusion and misunderstanding about what a conservator is, when it is possible or appropriate to get, why it’s necessary, who can file for one, and what the general process is.

So, let’s start with the basics.  As we age, many of us will gradually slow down. Perhaps this starts with using the stairs in our house less frequently, and maybe progresses to driving less at night.  Our muscles become weaker, our senses a little duller.  We may get a hearing aid for when we’re out in public.  These are all normal ‘symptoms’ of aging.  As we continue to get older, some of us may have cognitive, or mental, decline as well.  This is more than just forgetting where you’ve put your glasses or keys.

At some point, for some of us as we age, we become no longer able to take care of our own finances and our own health.  We can’t pay the bills, remember to take our medication, or even maintain basic hygiene.  Adult children can spot these issues when they see unpaid or overdue bills lying around the house.  Perhaps a caregiver is noticing and reporting the concerns about hygiene or unusual behavior.  Maybe you are talking to an assisted living community about moving your parent in, and they are concerned about your parent’s mental capacity.

Based on your concerns, you may wish to be the one who makes the financial and medical decisions on behalf of your parent.  It may, in fact, be necessary because your loved one has signs of dementia, paranoia or hostility that make them completely unable to care for their own needs.

If you and your loved one have acted in advance, then you may have a power of attorney that will allow you to make the necessary decisions.  In California, there are two kinds of powers of attorney: one for finances and one for medical care.  An individual who signs a power of attorney must be competent to do so, so if you are in a situation where your loved ones is already mentally compromised, or refuses to cooperate to sign one, then a power of attorney is not an option for you.

This is another reason why advance planning is so critical.  If you wait too long and are unable to get your loved one to sign a power of attorney, then you will need to go through the court process of a conservatorship to obtain decision-making power over your loved one’s finances, medical decisions, or both.  Next time we will talk about the conservatorship process.

What is a conservatorship?

I have been asked recently by a number of different sources to help them with a conservatorship, so it occurred to me that I should write a little bit about it.  A conservatorship occurs when you or your loved one is no longer able to manage their affairs, both the decisions about their financial affairs and the decisions regarding their personal affairs.  A conservator, often a family member, takes over these many decisions.

The problem with conservatorships is that they are court proceedings, can be lengthy, are public, can be expensive if you need an attorney (and many family members do), require filing, investigator and court fees (in addition to legal fees), require approval for certain transactions, and can require accountings of finances.  Conservatorships can be avoided altogether if the family member puts powers of attorney in place before there is an issue with capacity.  Unfortunately, not enough individuals do this in time.

There are two different kinds of conservatorships: conservatorships of the person, and conservatorship of the estate.  For a conservator of the person, decisions about food, clothing and residence are made.  For conservator of the estate, decisions regarding the financial affairs of the individual, such as paying bills, collecting income, and making investments.  Often, the conservator is the same person, though they can be two separate individuals or can be institutions.

Your best bet if you are worried that you or a loved one will become incapacitated is to execute powers of attorney for assets and health care.  These are simple documents that any estate planning attorney can prepare quickly and easily.  If it looks like it’s already too late, then you’re going to have to go down the conservatorship route.  You may want to start the proceedings before you think you need to, because the process can be lengthy.

A Family Law Coach can help to cut costs because I can walk you through the process, help you with documents, and make sure you are prepared for every step of the way…plus keep costs way down compared to traditional legal representation.

Don’t wait until it’s too late and make this costly estate planning mistake

As our Baby Boomers continue to age, the average age of our population is increasing. There are more older adults in the United States now than ever before.  As a result, I am seeing a lot more clients come to me, generally spouses of someone who is having mobility and dementia issues as they age.  Often, a decision has to be made regarding care and how to pay for the care.  Care in an assisted living community in California can cost $6,000 – $10,000 monthly, or more.  A couple may, for example, be considering a reverse mortgage to pay for care. But to sign paperwork, an individual must have “capacity,” meaning they must not have dementia or disorientation that prevents them from understanding the documents they are signing. Obviously, too, someone who is unconscious cannot sign documents either.

Too often, the couple waits until it is too late.  When a person has capacity, they can sign a Power of Attorney document that allows someone else, usually their spouse, to act on their behalf for their finances, such as to sign documents. Once capacity is lost due to dementia or illness, then a Power of Attorney is no longer an option and to obtain the ability to act on an individual’s behalf requires a conservatorship.

A conservatorship is a court process that gives an individual, usually a family member/spouse, the ability to manage the care and finances of another who does not have capacity to do so on their own. The process can take several months, and the court fees alone are up to $1,200.  Hiring an attorney can dramatically increase this cost.  In contrast, obtaining a Power of Attorney takes very little time and even with an attorney preparing it for you, is not going to be more than a few hundred dollars.  

Everyone should have a Power of Attorney for both finances and medical care once they turn 18.  Have you created your yet?

Is estate planning obsolete? Think again!

I have heard rumblings that estate planning is no longer necessary because the estate tax exemption is at $5 million, so only those with more than that need to do any estate planning.  Here are the reasons why they are dead wrong:

  1. Probate costs. When you don’t have an estate plan and you have $150,000 in property in California, your estate goes through the process of probate, which can cost your estate tens of thousands of dollars in unnecessary fees.  Creating a living trust avoids probate.
  2. Probate time/length.  The probate process can also take several years to complete, leaving your heirs in a state of limbo when you’re gone.
  3. Powers of attorney.  Even if your estate does not reach the $150,000, everyone 18 and over needs to have powers of attorney to determine who will make medical decisions on their behalf, have access to their medical records, and handle their finances should they become incapacitated.  Parents do not automatically have this right, which is why anyone 18 or over needs to have these documents.
  4. Distributing your estate to whom you want.  If you do not create an estate plan outlining who gets your estate, the government has an estate plan for you, and it may not be to your liking.  YOU have the choice and responsibility to determine who gets your estate, but if you don’t make the decision, then someone else will.
  5. Disinheriting heirs in a blended family.  If you have a family with step-children, you could easily dis-inherit them by leaving all of your property to your spouse (a common non-plan estate plan).  If your spouse inherits everything you have when you pass away, because you hold title to your property in joint tenancy, then your spouse will have control over how to distribute the estate at the second spouse’s death, which could very likely end up with your biological children getting nothing.
  6. Naming a guardian for your children.  Once you have children, it is imperative to name a guardian for them.  If you don’t, then a judge who has never met you, your children, or your family will get to decide.  In this case, anyone can petition to become your children’s guardian, and without naming someone, you open up the very real possibility of your children becoming the subject of a lengthy and nasty custody battle when you’re gone.
  7. Planning for your elder years and death.  Medical advances have led to longer lives, but this has also meant that we spend a longer period of time in decline, where we may need care.  We need to plan for that time and for that care while we are still healthy, and by getting our affairs in order, we can accomplish this.
  8. Having dignity in your last years.  When we don’t plan for our decline, then we can find ourselves caught off-guard and without the means or ability to take care of ourselves.  In that case, we may become dependent – or worse, burdensome – on others, generally our family.  Many of us would rather decide in advance how we want to handle our aging: where we want to live, who we want to care for us, how we want to be cared for.  If we don’t plan, then we get stuck with whatever is available.
  9. Saving your family untold grief.  Anyone who has experienced the decline of a loved one understands the difficulty in making caregiving decisions and end of life decisions, not to mention the passing of the estate.  By creating a comprehensive estate plan, we save our families from having to make impossible decisions at every turn.  At a time when family should be able to take the time to grieve and band together, too often there are many decisions to be made and fighting over what’s “best” or what you would have wanted.  These are YOUR decisions to make.  Shouldn’t YOU make them?

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