Prepare legal matters before illness strikes
Durable power of attorney documents your wishes, gives family members peace of mind
By Robert England Special to the Camarillo Acorn

Avoiding conservatorship

You can take certain legal steps to avoid court proceedings in case you lose the capacity to handle your legal affairs.

If you do lose capacity and become unable to handle your own affairs, a court-supervised conservatorship will be required unless you have in place a durable power of attorney for financial and healthcare matters.

A durable power of attorney is a document that remains in effect if you become incapacitated. This means that you can designate in advance a person you trust to handle your financial affairs and make medical decisions for you if you become incapacitated.

The durable power of attorney can be made effective immediately, or it can be a springing power of attorney, which would become effective only at the time you lost capacity.

A durable power of attorney for financial matters is safer than simply adding someone else's name to your bank account.

By law, your agent designated in a durable power of attorney cannot make gifts from your property unless you give specific written authorization. The use of a durable power of attorney, rather than a joint account, also eliminates any later claims by the joint account holder that you made a gift of the account to that person.

A durable power of attorney for healthcare allows you to appoint someone to make healthcare decisions for you when you become unable to make those decisions yourself. The durable power of attorney for healthcare matters can also contain an advance healthcare directive which sets forth your detailed instructions regarding your future medical care. In other states, this type of an advance directive is called a "living will."

The primary focus for an advance directive is the instruction by you regarding the extent of life-sustaining treatment that should be used if you are in the final stages of a terminal illness or permanently unconscious.

Because of the broad scope of a durable power of attorney, you should make sure you fully understand all its provisions before you sign the document. You should be certain that your designated agent is both trustworthy and capable because your life savings can be endangered if you designate an unscrupulous agent.

You should also designate alternates for the primary agent so that the durable power of attorney can remain in effect if the primary agent becomes unable to serve in that capacity.

The forms for an advance healthcare directive with a medical durable power of attorney included can be obtained from local hospitals or the California Medical Association.

You should, however, consult with your attorney regarding whether you should have a durable power of attorney for both financial and healthcare matters.

Robert England, attorney at law, Ferguson, Case, Orr & Paterson, is a member of St. John's Healthcare Foundation board of directors.