What Happens If You Become Incapacitated and Don’t Have the Right Documents in Place?

You need a plan. It’s an expression we share across multiple practice areas as we work with clients to ensure they are meeting their goals and hitting milestones within their long-term strategies. But, what happens when you don’t have a plan?

Our team has previously highlighted the importance of planning documents like Financial Power of Attorney designations and Advanced Health Care Directives. These tools provide peace of mind and guidance in the event you are unable to make decisions for yourself.

When you become incapacitated without first establishing these documents, your health and finances could be in flux.

Who Makes Medical Decisions Short of a Health Care Directive?

In California, the default law recently changed to apply more generally to this exact situation. If an adult in the state becomes incapacitated or unable to effectively communicate their wishes for treatment, Assembly Bill 2338, which passed in September 2022, applies.

This law establishes a hierarchy of healthcare decision-makers if a patient has not previously designated an individual and does not have the capacity to communicate one currently. The medical facility the patient is at will assign an agent that is accessible in the order as follows:

  1. Patient’s spouse or domestic partner
  2. Patient’s adult child
  3. Patient’s parent
  4. Patient’s adult sibling
  5. Patient’s adult grandchildren
  6. Another adult relative or close personal friend

The law requires that the chosen individual be available and have demonstrated special care and concern for the patient while being “familiar with the patient’s personal values and beliefs.” This authorization lasts for the duration of the incapacitated individual’s care or 60 days – whichever is shorter.

All of this is to say that your care and treatment are out of your hands if you haven’t made this choice for yourself. Not only could an individual be granted assumed responsibility for your health, but your treatment may be delayed as the facility works to confirm the agent to act on your behalf.

At the time of this writing, 44 states have similar “default surrogacy” laws. It’s important to know what the law is in your state if this situation were to ever come up.

What Happens to Your Finances When You Don’t Have a Financial Power of Attorney?

In the same vein, your finances also become out of your control if you are incapacitated and have not appointed an agent through the use of a Financial Power of Attorney. However, a key difference is present – instead of qualified professionals making the appointment as is the case with healthcare decisions, the courts get involved and make the appointment.

Probate courts step in and appoint an agent who assumes financial duties on your behalf and who requests so to the court. This process often takes time and may result in someone who is unfamiliar with your financial circumstances taking control of your finances, or who has bad intentions about your money or health care. If you have business interests, this becomes particularly detrimental.

Because of the potential delays, your debts will grow and may become delinquent, your bills will pile up, and recent financial progress can be significantly stunted. Failing to establish a Financial Power of Attorney prior to becoming incapacitated is a significant risk. We believe this is a risk even the wealthiest can’t afford to take.At The Law Offices of Tyler Q. Dahl, we help people find peace of mind by getting the right documents in place on time. You need to do this before your health deteriorates or an accident strikes. Contact our team and get started right away.

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Dahl Law Group

At Dahl Law Group, we’re not just a law firm. We’re your trusted advisor for your business and family from beginning to end. As your family and business grow, we will be there by your side. Our passion is providing you with peace of mind and protection through personalized estate and business planning.

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