Estate and Incapacity Planning in California

What is Incapacity Planning?

Planning for incapacity means that you are prepared in the event that you aren’t able to make decisions or communicate for yourself, often due to illness. This includes choosing someone you trust to make financial and medical decisions on your behalf if needed. Since incapacity can happen to anyone at any time, it’s best to include incapacity planning in your estate plan.


Purpose of Estate Planning

  • To make sure your things go where you want them to go after you’re gone
  • To help your family to avoid probate court in the future
    • Save time and money
    • Minimize family conflict
  • To have peace of mind for you and your family


Key Elements of Estate Planning

  • Living Trust: a vehicle created to hold and protect your stuff for your kids without court involvement
    • Revocable Living Trusts can be modified as you go through life changes
  • (Pour-over) Will: a list of who should receive what when you die with court supervision (probate)
  • Advance Healthcare Directive: a document giving someone you trust permission and guidance to make medical decisions for you when you can’t make them or communicate yourself
  • Durable Financial Power of Attorney: a document giving someone you trust permission to make financial decisions for you when you can’t make them or communicate yourself
  • Final Disposition: cremation/burial instructions and last wishes


What do you do when someone is incapacitated in California?

When someone is incapacitated, they’re unable to make sound decisions and may not be able to comprehend their situation. In California, the definition of incapacity includes inability to make decisions or understand the consequences of their own actions. When it comes to estate planning, the court determines whether someone is incapacitated. If an incapacitated person hasn’t planned for incapacity, their family might choose to pursue a conservatorship in order to maintain the estate. This would mean that a loved one would gain full control over the incapacitated person’s estate and make financial and medical decisions for them.


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