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Incapacity -Dementia Issues

Incapacity - Dementia Issues

Eventually, our aging loved ones will likely need some level of help managing their personal medical care or finances, even if they still have mental capacity. It's imperative that your aging loved ones execute valid and robust powers of attorney so someone they trust can make financial and medical decisions when they can no longer make these decisions for themselves.

Without having these medical and financial powers of attorneys in place, family members are greatly limited in what they can do to help their loved ones once they lose mental capacity.  The family ends up having to go through a long and expensive court process called a Conservatorship to get the legal authority to handle their loved one's affairs. That's why it's imperative to act now.

Powers of Attorney and Advance Health Care Directives

 Financial Powers

A Financial Power of Attorney (also called a general durable power of attorney) is a legal document you sign that allows someone else (called your agent) to manage your finances if you become incapacitated and can no longer make those decisions yourself. 

Not all financial powers of attorney are the same!  It's imperative that you work with an attorney who can ensure your power of attorney will provide great protection and flexibility so your agent has the powers necessary to make the best decisions for you in real time.  If a power of attorney is not robust or comprehensive, it may greatly limit your agent's ability to fully protect you in your time of need, or take advantage of legal strategies that could benefit you financially.

If you permanently lose mental capacity before executing a valid and robust financial power of attorney, your family members cannot handle your finances for you without going through a court process known as a Conservatorship.  This will not only cause great frustration, but also additional costs, hassle, and delay that could have been avoided by executing a valid financial power of attorney. 

Medical Powers

Medical Directives usually address three key wishes: who you want to make your medical decisions, what your end of life wishes are, and who can receive information about your condition if you cannot communicate.

An Advance Health Care Directive (also called a health care power of attorney) is a legal document you sign that designates someone you trust to make medical decisions for you if you lack the mental capacity to make these decisions for yourself.  A Living Will declares your wishes for your end of life care and specifies whether you wish to be removed from artificial life support if your doctors determine you will never recover from your injury or illness.  A HIPAA Authorization specifies who can speak with your doctors or the hospital and receive information about your condition if you cannot temporarily or permanently communicate.

Not all medical directives are the same!  It is important that your medical directives provide great protection and flexibility so you can receive the care and treatments you need at all times. 

If you lose your mental capacity before executing valid and robust medical directives, your family members cannot handle your medical care for you without going through a court process known as a Conservatorship.  This will not only cause great frustration, but also additional costs, hassle, and delay that could have been avoided by executing valid medical directives. 

Conservatorships 

For many of us who have an aging parent or loved one whose quality of life is beginning to decline, we often find ourselves in the middle of a crisis very quickly.  Hopefully, our loved one has executed robust financial and medical powers of attorney before losing capacity so power to act on their behalf can be easily transferred to us.  But, for those families where there are no legal documents in place, and the loved one no longer has the mental capacity to understand what they are doing, a conservatorship may be necessary.

 A Conservatorship is a court process where we ask a judge to appoint someone to care for your aging loved one because they can no longer care for themselves or manage their own finances. This usually happens if an aging loved one has dementia. Most family members seek a General Conservatorship over their parent or loved one who has lost complete mental and physical capability to care for themselves, while a Limited Conservatorship is generally reserved for younger adults with disabilities.

The Conservatorship process typically takes about 4 months to complete, and involves filing a petition with the court to become the conservator of your loved one, informing your loved one that you intend to seek a conservatorship over them, informing your loved one's relatives of the sought conservatorship, having a court investigator speak to your loved one, a court hearing/appearance before the judge to consider your request, attending a conservatorship class, obtaining an official court order that grants you the powers of conservator, and maintenance.

The conservatorship process can be complex in nature, which is why we strongly recommend that you work with an experienced attorney through this process.  As your special needs attorney, our goal is to make sure the conservatorship process is as easy as possible for you, so you can focus on other things that are important to you or your loved ones. We are also well equipped to handle any surprises that may arise during the process. 

If a loved one needs immediate assistance, and you lack the legal authority to assist him or her, we encourage you to talk with us right away.  As your trusted Elder Law attorney, we can help your family through this challenging time and process. There is no reason to navigate these massive life changes alone. The sooner you can obtain a Conservatorship granting you the legal authority to handle your loved one's affairs and care, the sooner you can move forward with your own personal life and feel a sense of order again. 

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