What Happens If You Become Incapacitated Without a Power of Attorney in California?

General information, not legal advice. Attorney advertising. Reading this article does not create an attorney-client relationship. See the important information at the end of this article.

Who can make decisions for me if I can’t?

It depends on the kind of decision and on what you signed while you were able to.

• Money and property. An agent (called an “attorney-in-fact”) named in a durable power of attorney can act for you. A successor trustee can manage assets titled in your living trust. If you have neither, a court-appointed conservator of the estate may be needed.
• Health care. An agent named in an advance health care directive can make medical decisions for you. If you don’t have one, California Probate Code § 4712 lets a health care provider choose a surrogate from among people who know you, such as a spouse or domestic partner, an adult child, a parent, an adult sibling, an adult grandchild, or another adult relative or close friend.

The default health care rule helps in a hospital, but it is not a substitute for a plan. The provider chooses the person, not you, and there may be no written guidance about your wishes. Default rules for medical care also do nothing for your finances.

What can’t my family do without a power of attorney?

Families are often surprised by how little they can do. Without legal authority, a spouse, partner or adult child generally cannot:

• Access or manage a bank or brokerage account titled only in your name.
• Withdraw from or change your IRA or 401(k).
• Sell, refinance or lease real estate titled in your name alone, including your share of a home.
• Deal with the IRS or the Franchise Tax Board on your behalf, or sign your tax returns.
• Handle insurance claims, pensions or many government benefits for you.
• Sign contracts for in-home care or an assisted living or memory care community on your behalf.

Married couples should not assume a spouse can step in. Even community property is often titled in a way, or held at an institution, that requires the other spouse’s signature or a court order. Retirement accounts are always individually owned.

What is a conservatorship, and when is it needed?

A conservatorship is a court case in which a judge appoints someone, the conservator, to make decisions for an adult who cannot manage on their own. A conservator of the person handles personal care, and a conservator of the estate handles finances. In San Diego County, these cases are filed in the probate division of the Superior Court.

California treats conservatorship as a last resort. Probate Code § 1800.3 says a court may not grant one unless it expressly finds that the conservatorship is the least restrictive alternative needed to protect the person. The court must consider the person’s abilities with supports, including powers of attorney, advance health care directives, health care surrogate designations and supported decision-making agreements. Under Probate Code § 1821, the person asking for a conservatorship must explain which of those alternatives were considered or tried and why they don’t work.

That framework protects personal freedom, and it also means that a family facing incapacity with no documents in place has a longer, more involved road. A conservatorship usually means court filings, notice to relatives, an investigation and a hearing. After appointment, a conservator of the estate generally reports to the court about how the money was handled. The process is public, and attorney and court costs are usually paid from the conservatee’s assets.

When the right documents exist and are working, a conservatorship is often unnecessary. That is the main goal of incapacity planning.

How does a durable power of attorney prevent this?

A power of attorney for finances lets you name an agent to act for you. To survive your incapacity it must be durable. Under Probate Code § 4124, that means it states that it is not affected by your later incapacity, or that it takes effect upon your incapacity, or uses similar words.

Under Probate Code § 4121, a California power of attorney must be dated and signed by you (or by another adult in your presence and at your direction), and it must be either acknowledged before a notary public or signed by two adult witnesses. The agent cannot be a witness (Probate Code § 4122). In practice, many banks and title companies expect a notarized document, especially for real estate.

A few decisions are worth thinking through with your attorney:

• Immediate or “springing.” An immediate power works right away. A springing power takes effect only upon incapacity, which can delay things while your agent proves you are incapacitated.
• Who and in what order. Name a primary agent and at least one backup. Think about who is organized, trustworthy and close enough to deal with local banks and properties.
• Specific powers. Some acts, such as making gifts, changing beneficiary designations or creating or amending a trust, generally need to be spelled out in the document.
• Fit with your trust. The agent can often be given authority to move forgotten assets into your living trust.

What does an advance health care directive add?

An advance health care directive lets you name a health care agent and give instructions about treatment, including life-sustaining treatment and pain relief. It moves you to the front of the line: under Probate Code § 4712, an agent named in your directive has priority over a surrogate chosen by a provider. It can also include a HIPAA authorization, so doctors can talk with your agent.

The signing rules matter. Under Probate Code §§ 4673 and 4674, the directive must be dated and signed, and either notarized or signed by two qualified adult witnesses. Your health care provider, staff of your provider or care facility, and your health care agent cannot serve as witnesses, and at least one witness must be unrelated to you and not entitled to inherit from you. If you are a patient in a skilled nursing facility when you sign, Probate Code § 4675 also requires a patient advocate or ombudsman to sign as a witness.

Does a living trust help with incapacity?

Yes, for the assets it holds. A well-drafted revocable living trust names a successor trustee and explains how incapacity is determined. If you can no longer manage things, your successor trustee can take over trust assets, such as your home or investment accounts, without a court case.

A trust has limits. It only controls assets that are actually titled in it. Retirement accounts like IRAs and 401(k)s generally stay in your own name, so your agent under a power of attorney still matters. A trust also doesn’t make health care decisions. That’s why a complete plan usually includes all three documents: a trust, a durable power of attorney and an advance health care directive. Our guide to living trusts versus wills explains more about how trusts work.

What if a parent is already showing signs of memory loss?

Act promptly, and be careful. A diagnosis of dementia or another condition does not automatically mean a person can’t sign legal documents. Capacity depends on the person and on the decision being made, and many people in the early stages can still understand and sign a power of attorney or directive. But capacity can decline quickly, and once it is lost, signing new documents may no longer be possible.

• Talk with your parent first about what they want. The documents must reflect their wishes and must be signed voluntarily.
• Gather existing documents. An older power of attorney or directive may still be valid, or may name people who are no longer available.
• Meet with an attorney soon. An attorney will usually want to speak with your parent privately to understand their wishes and confirm the documents are their own choice.
• Ask doctors about documenting capacity when there is any doubt, so the documents are less open to challenge later.

Holiday visits are often when families first notice changes. Our year-end estate planning checklist has tips for starting that conversation, and Irina meets with clients and their families in English and Russian.

An incapacity planning checklist

• ☐ Sign a durable power of attorney for finances, with a backup agent.
• ☐ Sign an advance health care directive with a HIPAA authorization, and give copies to your agents and doctors.
• ☐ If you have a living trust, confirm your home and major accounts are actually titled in it.
• ☐ Make sure your documents nominate the person you would want as conservator, if one is ever needed.
• ☐ Tell your agents where the originals are kept.
• ☐ Review your documents after a marriage, divorce, move, death in the family or new diagnosis.
• ☐ If your plan is several years old, schedule a free estate plan review.

If a loved one has already passed away, see our guides on probate costs and on dying without a will in California.

Sources: California Probate Code § 4121, § 4122 and § 4124 (powers of attorney); § 4673, § 4674 and § 4675 (advance health care directives); § 4711 and § 4712 (health care surrogates); § 1800.3 and § 1821 (conservatorship); California Courts Self-Help Guide: Conservatorships.