Q: How can incapacitated elders be protected?
A skilled California estate planning lawyer has an arsenal of legal mechanisms on hand to customize an estate plan that’s personalized to each client’s particular situation.
In addition to documents that transfer your property to others–like a last will and testament or like a trust agreement (which may also help avoid probate) –there are other important parts of a comprehensive estate plan. The parts that plan for the possibility of incapacity instead of death and how your financial and medical needs would be handled in that event.
For example, there are durable powers of attorney in California. With a durable power of attorney, a person can appoint an agent to act on their behalf in either a limited or unlimited manner. Unlike a springing power of attorney which only becomes active when the maker becomes incapacitated, a durable power of attorney becomes active upon execution and remains active throughout the incapacity.
It’s important to note that in order to execute a power of attorney, the maker needs to be of sound mind. In other words, the documents must be prepared before the person becomes incapacitated. As people age and mental capacity declines, they may lose the ability to handle their own financial and/or medical affairs. Designating agents now—before you lose the capacity to do so–who can step in immediately or at a future date is crucial, especially with the rise in dementia cases.
In the event someone becomes incapacitated without a power of attorney, a guardianship proceeding in court would be necessary in order for someone to be appointed to take care of the person’s affairs. It is far more costly and time-consuming to go this route and does not guarantee that the person who ultimately gets appointed would have been the agent the incapacitated person would have chosen for the task.
Recently, an 84-year-old mother of eight and grandmother of 50, who reportedly “struggles with dementia” and is cared for in turn by her children, went missing. She wasn’t located for a week despite the efforts of police and her worried family and community.
Reportedly, after visiting a hospital for tests on the day she disappeared and visiting her credit union, the woman vanished. Three days later, she allegedly “emptied her bank account” at the credit union–something uncharacteristic and alarming according to her family– and vanished again for several days before reportedly walking into a police station about a week after her original disappearance.
A senior’s legal affairs and bank accounts can be structured to prevent them from accessing the accounts at all or at least not without a co-signer’s approval or other intervention. This extra step may alert bank personnel that something isn’t right in a situation–which may help reduce or prevent missing person cases like this one. But without safeguards or restrictions, seniors have free access to their accounts and can withdraw their money unnoticed and without restriction. The thought of how vulnerable seniors, especially those with dementia, could be to the influence of strangers (or even untrustworthy friends or family) in this kind of scenario is worrisome.
If you have a loved one who is a senior and you have not already done so, it may be wise to visit an estate planning attorney to be sure all the necessary safeguards are in place for their protection.
If you are in need of an initial estate plan or would like to modify an existing one, Biddle Law can help you. Contact our office today for a free 15-minute consultation.
From our offices in San Mateo and Belmont, California, we serve clients throughout San Mateo County including San Carlos, Burlingame and Foster City.