Elder Law - Alternatives to Conservatorship

In a old article, we presented an summary of two dissimilar types of conservatorships that exist in California. This current article explores inherent alternatives to avoid the need to create a conservatorship.

If an elder is mentally incompetent and unable to cope their own financial affairs, then someone else must be granted the authority to achieve this task. If no power of attorney for financial matters exists then the court, in a conservatorship proceeding, will appoint someone to have this authority. Such a conservatorship over the estate is a long and sometimes costly process.

Financial Power Of Attorney

A power of attorney for financial administration can avoid the need to create a conservatorship over an elder's estate. If the elder has adequate mental capacity to execute such a document, then their appointed agent will have the needed authority without having to ask the court for permission.

Elder Law - Alternatives to Conservatorship

Such powers of attorney have been referred to as a "license to steal" and must only be utilized to protect the elder's financial well-being.

Similarly, a valid power of attorney for condition care decision development (known in California as an enlarge condition Care Directive) can be a viable alternative to having to create a conservatorship over the person. When an elder becomes incapacitated and unable to make sound medical decisions, then this power of attorney grants the agent the legal authority to do so. Again, no court intervention is required.

A revocable trust is also part of the ready alternatives to a conservatorship. The elder's assets that are owned by the trust can be managed by a successor trustee - a someone appointed by the elder to prudently carry on trust assets if the elder becomes mentally or physically incapacitated.

If these documents were properly prepared well in enlarge of the elder's incapacity, then they should serve to avoid the need for court intervention. However, problems arise when loved ones effort to have the elder execute such documents when their mental faculties are in question.

In Riverside and other counties in California, for example, legal mental capacity is thought about through Probate Code Section 811. This statute serves to identify relevant areas of mental functions that can be assessed by a mighty psychologist or psychiatrist. In assessing an elder's mental capacity under this section, a poor carrying out in any one of the identified areas is not adequate to make a measurement that the elder lacked the mental capacity in a given circumstance. The real inquire is whether the elder's poor carrying out rendered him or her unable to understand that the power of attorney was granting his or her agent the authority to make financial or healthcare decisions.

When the elder's mental capacity is in inquire at the time the powers of attorney (or trust) were executed, then the documents' validity will also be questioned.

Again, powers of attorney for financial administration and healthcare decision making, along with revocable trusts, can often serve as valid alternatives to the preparing of a conservatorship of the someone or estate. A mighty elder law attorney can sustain in creating these documents, in case,granted the elder's mental capacity is intact.

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