Council on Aging - Answers 2022 - 57

COUNCIL ON AGING - SOUTHERN CALIFORNIA
Power of Attorney
All persons, regardless of age, should have a
power of attorney in place. A power of attorney
designates an agent to act on your behalf should
you become unable to handle your own affairs.
Generally, the power of attorney is activated either
voluntarily (i.e., you sign agreeing to allow someone
else to act on your behalf) or when two physicians
sign off that a patient can no longer act on his own
behalf. Likewise, a living trust should provide how
and when a new trustee takes over, in the event
the trust maker is unable to act. The trust should
provide how that inability is determined - one
or two physicians signing a statement, or perhaps
a majority of a named committee of people. A
power of attorney and/ or appointment as successor
trustee of a parent's trust works in many situations
and might be all that is needed, provided family
members are in agreement (i.e., siblings aren't
arguing over matters concerning the parent and
making conflicting decisions). A power of attorney is
not, however, a determination of legal incompetence,
and it does not take away any rights of the principal.
Thus, you may have a valid power of attorney and
appointment as a successor or co-trustee to act on
behalf of your parent with a diagnosis of dementia,
but that does not mean your parent cannot still sign
checks, enter into contracts and engage in other
transactions. It is not uncommon for a parent to
be led to this behavior at the urging of the child
who does not have power of attorney, in an effort
to curry favor or gain control. To prevent that, you
may need to file for a conservatorship - a judicial
determination that the person no longer has legal
competency and an order stating who specifically
may now act on that person's behalf.
Conservatorship
When a conservatorship is ordered by a court,
the conservatee loses some rights, including the
right to enter into contracts on their own behalf. In
a conservatorship, a person, who may or may not
be the person named in the power of attorney, is
appointed conservator of the incapacitated client's
person and estate and is the only person who can
Council On Aging - Southern California | 714-479-0107 | www.coasc.org
act on the conservatee's behalf. The determination
will be made by a judge who will also appoint an
attorney to act on behalf of the incapacitated adult to
determine their desires and best interests. However,
California law provides that an attorney who moves
for conservatorship over their client is violating
attorney-client privilege. Thus, the attorney who
drafted mom or dad's power of attorney or trust,
cannot be the attorney who assists you in getting a
conservatorship over your parent. That attorney's job
is to protect the parent/client and act solely in their
interest.
Stages of Incapacity
When mom or dad start forgetting your name,
misplacing keys, repeating things they just told
you, is it time to activate the power of attorney?
How about when they go for a walk and get lost?
Forget to pay their bills? Start handing out money
to any scammer that calls? Had a diagnosis of
dementia? The answer is " it depends. " Generally,
you'll want to observe the parent much more
carefully, with regular in-person visits. Get a
doctor's opinion. Frequent communication with
the parent and all siblings is desirable, so everyone
knows what's going on and can agree on a plan.
Arguments and disagreements over who acts
when will only add to the confusion and stress the
parent may be feeling. If the parent will voluntarily
agree to activate a power of attorney or appoint
a child as co-trustee (or sole trustee) of a trust
so that a child can at least check bank account
balances, ask questions at financial institutions,
and obtain and review important documents,
that's a good first step. If he won't voluntarily
turn over any control, you will likely need a
doctor's opinion, and if problems still persist, a
conservatorship may be needed. The further ahead
you plan, the more options you will have available.
Reprinted with permission from Teresa J. Rhyne.
Teresa is an attorney practicing in estate planning
and trust administration in Riverside and Paso
Robles. You can reach her via email at Teresa@
trlawgroup.net.
Answers Guide 22/23
57
FINANCE & LEGAL
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Council on Aging - Answers 2022

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