Legal processes can help protect someone who has become incapacitated and can no longer make decisions or even care for themselves. An example is someone with advanced dementia who can no longer manage their finances and day-to-day life or care for themselves. In such cases, someone else may need to step in to handle their finances and arrange for care, either in the home or in a specialized facility. Since there’s currently no cure for dementia, incapacitation is permanent.
But what happens when someone is only temporarily incapacitated? Many people worry that partial incapacitation could lead to permanent loss of control over various aspects of their lives.
What Does It Mean to Be Temporarily Incapacitated?
Temporary incapacitation means that something has caused someone to no longer be able to make sound decisions or advocate for themselves and their property, but it’s not long-term incapacitation. Conditions like advanced dementia or permanent brain damage can create permanent incapacitation.
But there are other conditions and situations that don’t lead to permanent incapacitation. That can include a drug or alcohol addiction that clouds judgment until the person seeks treatment, a stroke from which the patient can recover all or most of the way or a traumatic brain injury that initially causes cognitive issues but will eventually heal on its own or by treatment. The incapacitation could last days, weeks, or months, but in time the person gains back their cognitive abilities.
What Happens During the Period of Incapacitation?
Even if it’s temporary, a period of incapacitation legally means there are things you can’t do. These include writing a will, entering a lease agreement or home sale/purchase, and managing your money.
If you haven’t set legal protections in place, your spouse or close family member will usually be able to make decisions on your behalf. However, that’s not always ideal, especially if they don’t know what your wishes are, understand your assets and debts, or use the period of incapacitation to take advantage of you.
How Can I Protect Myself?
Temporary incapacitation can occur unexpectedly. Most people don’t expect to have a stroke or be in a car accident that leads to brain damage. It’s unpleasant to think about, but planning ahead is the best approach. There are legal documents you can draw up that will go into effect once you’re incapacitated. These designate who’s responsible for you and for making decisions on your behalf.
Among the most important documents are advance health directives (often called living wills) and powers of attorney (POAs). Let’s look at what each of those is and how they work.
What Is an Advance Health Care Directive?
This is a document that specifies what kinds of treatments you do or don’t want at the end of life. This can include items such as not having a feeding tube or ventilator, and it can also include blood transfusions, surgeries, or various medications. You can also request to die at home.
In the directive, you name someone to act on your behalf if you’re incapacitated. Who you choose depends on who you trust and who you feel comfortable talking about these issues with. It’s often, but not always, a spouse. It should be someone who will carry out your wishes even if they’re different from what they would want.
In California, the advance directive comes with two main parts: The first part is where you name the medical decision maker, the second is where you fill out your medical requests. Note that you don’t have to do both; you can do just one or the other. But for full protection, having both is a good idea.
What Is a Power of Attorney?
While the advance directive allows you to choose someone to represent your medical interests, that form doesn’t provide authority outside of that. To have someone manage your financial or legal interests while incapacitated, you’ll need to assign someone the power of attorney. You have two choices for these kinds of POAs:
- Limited POA. A limited POA is drawn up to represent a limited, specific purpose and doesn’t provide broad decision-making authority. It usually is used for things such as having someone else represent you in a financial matter, such as a real estate deal in another state when you can’t attend.
- General POA. As its name implies, a general POA provides broader responsibility to handle more than one or two specific concerns.
There are also two times a POA goes into effect for either the limited or the general POA:
- A durable POA goes into effect as soon as it’s signed and stays in effect until it’s changed or canceled.
- A springing POA doesn’t go into effect upon signing, but activates at specific times for specific reasons. It’s often used for someone who becomes medically incapacitated, and it doesn’t go into effect until that occurs. It authorizes someone to step in during the emergency and manage financial, business, or legal matters.
What Should I Do to Start an Incapacitation Plan?
Call us at 949-260-1400 to work with one of our experienced estate planning attorneys. Our Orange County, California attorneys are experienced in all manner of estate planning and incapacity issues and are ready to help.