DISCLAIMER: THE FOLLOWING INFORMATION IS NOT A SUBSTITUTE FOR LEGAL ADVICE AND IS NOT A GUARANTEE, WARRANTY, OR PREDICTION REGARDING THE OUTCOME OF ANY LEGAL MATTER. NAKAHARA LAW, A.P.C. DOES NOT INTEND TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP THROUGH PROVIDING THE INFORMATION BELOW.

Question 01

What can I do if a family member can no longer manage his or her finances due to mental or physical incapacity?

If the incapacitated person has a valid power of attorney for financial matters, or has previously transferred their property to a revocable living trust, the agent named in the power of attorney or the successor trustee of the revocable living trust may be able to assist in making financial decisions for the incapacitated person. The terms of the power of attorney or revocable living trust must be consulted to determine if agent or successor trustee can act immediately, or if a document is only effective upon the incapacity of the principal in the case of a power of attorney, or upon the incapacity of the acting trustee in the case of a revocable living trust.

Question 02

What can I do if the incapacitated family member does not have a power of attorney for financial matters or a revocable living trust?

If the incapacitated person does not have a power of attorney for financial matters or revocable living trust, it may be necessary to have the court appoint a probate conservator for the incapacitated individual. In such a proceeding the probate court appoints someone (conservator) who acts on behalf of the incapacitated individual (conservatee) and manages the incapacitated person’s finances solely for the benefit of the incapacitated individual.

Question 03

Where can I obtain a Power of Attorney for Financial Matters?

California provides a Uniform Statutory Form Power of Attorney in the California Probate Code at Section 4401 et. seq. The Uniform Statutory Form Power of Attorney is also be available on-line at various websites by typing the words “California Uniform Statutory Form Power of Attorney” into your internet browser. [Caution: Always type the word “California” in your search, otherwise you could get Power of Attorney forms for other U.S. States that may not be effective in California]

Question 04

What can I do if a family member can no longer communicate his or her health care wishes due to mental or physical problems?

If the family member has a Health Care Directive, also known as a Power of Attorney for Health Care, then the agent named in that document has the authority to make medical and other health care related decisions for the incapacitated family member. If the family member does not have a California Health Care Directive, then only a Conservator of the Person, appointed by the Probate Court, can make legally binding health care related decisions for the incapacitated family member.

Question 05

Can an agent under a California Power of Attorney for Financial Matters also make health care decisions for the incapacitate person too?

No. The California Power of Attorney for Financial Matters and the California Advanced Health Care Directive are separate documents. Although the same person can be named in both documents, they are separate documents.

Question 06

Who should have a Health Care Directive?

Every person over the age of eighteen (18) years of age.

Question 07

Can I make medical decisions for my parent?

Unless your parent has signed a Health Care Directive naming you as his or her health care agent, you cannot make legally binding health care decisions for an incapacitated parent who can no longer express his or her wishes regarding his or her health care.

Question 08

Where can I obtain a California Advanced Health Care Directive Form?

California provides a Statutory Advanced Health Care Directive Form in California Probate Code at Section 4700 et. seq. The California Medical Association also has a form that can be downloaded for a small fee. Various Advance Health Care Directive Forms are also available on-line at various websites by typing the words “California Statutory Advanced Health Care Directive Form” into your internet browser. [Caution: Always type the word “California” in your search, otherwise you could get health care directives for other U.S. States that may not be effective in California].

Question 09

Who has the legal authority to make funeral and burial arrangements for a deceased family

The agent named in a California Advance Health Care Directive has the authority to make funeral and burial arrangement for the principal unless the principal has made his or her wishes known in a written document that complies with the requirements of California Health & Safety Code section 7100.1.