The Two Different Documents to Govern Incapacity

One of the important things a comprehensive estate plan does is to plan for incapacity. Incapacity is when a person is medically determined to be unable to make decisions for themselves. An estate plan handles this by having you designate a person or persons who will handle your affairs for you in such a scenario.

Clients frequently assume that this is done through one document. It is not. California law requires that this designation is done through two documents. The first is called a Durable Power of Attorney. This document enables you to name a person who will handle your legal and financial matters if your physician determines that you do “not have sufficient understanding or ability to make or communicate decisions.”

The second document that comes into play during incapacity is called an Advance Health Care Directive. This document designates the person who will make health care decisions for you in the event of your incapacity. Typically, an Advance Health Care Directive comes into play when end of life decisions are being made.

The Power of Attorney has broad control to manage your assets and deal with the government on your behalf. This makes it important to appoint someone who is financially responsible and diligent in handling official matters. The agent you appoint in your Advance Health Care Directive by contrast, is just someone who you know will show up when needed, who knows you well, and has your best interests at heart. Frequently people name the same person in both documents but there are many good reasons to name a different person in each. For example, your sister who doesn’t pay her bills or her taxes on time might not be the right person to name in your Power of Attorney but may be the perfect person to name in your Advance Health Care Directive.

Please reach out to us at contact@brittonlawgroup.com or (626) 390-5953 if you have any questions.

Happy Planning!

B.B.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Brittany Britton is licensed to practice law in the state of California only.

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