Will you need help managing your affairs

No one knows what the future holds, and planning for the worst-case scenario is not a bad idea. In the end, it may save a lot of grief for you and your loved ones. In this column, I’ve addressed some frequently asked questions about making decisions.

Can I be barred from handling my own financial, legal and medical affairs for any reason?

The simple answer is yes. The law requires you to have “capacity” to make decisions for yourself. For example, to make medical treatment decisions, or to enter into a legal contract and make financial decisions, you must be able to understand the nature and consequences of your actions. This is what the law terms as “capacity.” If you lose this capacity your agent, through your durable power of attorney or advanced healthcare directive, can step in and help on your behalf. (See below.) If you do not have a redesigned plan, the court will appoint a conservator.

What is a conservator?

This is a person designated by the court to manage your affairs. If you become unable to handle your affairs and do not have a redesigned plan for this contingency, someone will be appointed to take care of your legal, financial and possibly medical decisions. Conservators may be family members, friends or a county public guardian. But, unlike an agent through the durable power of attorney, a conservator will act under the supervision of the court and not under your instructions. Conservatorships can be expensive and will be paid for out of your funds.

How do I plan ahead

for incapacity?

There are two things you need to plan for in case of incapacity: Who will take care of your financial and legal obligations, and who will make healthcare decisions on your behalf. Appropriately, there are basically two types of documents to help in this regard: durable power of attorney and advanced healthcare directive.

The durable power of attorney gives another person (your agent) the right and authority to act on your behalf and in accordance with your instructions. That authority will last through your incapacity but end upon your death. This means that if you were suddenly unable to handle your own affairs, someone you trust could do it for you. The scope of the power is up to you: You can simply have someone pay your bills, or you can empower your agent to handle nearly all of your affairs. Your agent cannot take anything of yours as a “gift” without your specific written authorization.

Additionally, your agent can be anyone you trust, such as a friend or family member. He or she does not have to be an attorney. The main reason for needing a durable power of attorney is that while you may be comfortable in the fact that your spouse or adult child will take care of all your needs, your creditors may not necessarily agree. Specific power should be granted to someone to act on your behalf.

The advanced healthcare directive allows you to designate someone to make medical decisions on your behalf in case of incapacity. Again, you can name anyone you trust to represent you in this regard. In addition, you can include detailed instructions regarding you future medical care, such as the use of life-support equipment. n

Simona Zakheim, an attorney in San Jose, will be writing occasional columns on senior issues. She can be reached at [email protected]