Getting Support without Giving Up Control

As people grow older and experience disabilities they may need or seek some support – often from a child – with important decision making or with managing their assets, income and expenses. But they may not be ready to completely transfer their control. What they want is a middle ground where someone assists them but they still keep control. Let us discuss options.

Effective January 1, 2023, California implemented Supported Decision Making. “Supported Decision-Making means an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult.” It enables disabled persons to seek assistance with managing their day-to-day personal living, health care, financial and legal affairs.

Generally, this approach involves a written Supported Decision Making Agreement between the disabled person and their Supporter(s) detailing the scope of the support provided, the arrangement, and safeguards. The supporter can attend and participate in all meetings – such as at banks, doctor offices, and government offices – to advise and advocate for the disabled person.

The supporter helps to process (understand) what is going on and explains the options, and their associated benefits, risks and alternatives to the disabled person. So long as the disabled person has sufficient capacity – with such support in place – to make the decision, the disabled person makes their own decision. The supporter may make a recommendation but the disabled person makes their own decision.

Next, if a disabled or elderly person has assets inside a trust, e.g., their real property, bank and investment accounts, then they can either enlist greater support by appointing a co-trustee, or lesser support by appointing an agent to the trustee (themselves). Oftentimes, a parent appoints a child as a co-trustee with independent authority to act alone without the parent’s signature to deal with financial assets. The parent as settlor still directs the co-trustee’s actions and as the other co-trustee can act independently.

Sometimes all the the parent as trustee needs is to appoint an agent of the trustee (section 16247 Probate Code) and not as co-trustee. The agent for a trustee can do administrative tasks, such as banking and paying bills, on behalf of the trustee. The agent cannot do big tasks such as to buy and sell assets. The appointment involves a special power of attorney that is different from the general power of attorney people have to control their non trust assets.

Nonetheless, once the parent / trustee becomes incapacitated, or dies, the agent loses their representative authority because such agency entails supervision by the trustee. Supervision ceases upon the trustee’s own incapacity. Then a successor trustee must replace the incapacitated trustee.

Next, if the disabled or elderly person has personal care issues that need to be addressed, e.g., employing care providers and managing household affairs, then they can appoint a trusted person (usually a child) to act as their agent under a power of attorney that is specially drafted to speak to personal care needs such as hiring in home care providers. This power of attorney can supplement a general power of attorney that deals with broader issues.

Estate planning helps to preserve a greater degree of independence and self-determination as a person ages and needs the assistance. That is, having a supported decision making agreement or power of attorney and advance health care directive can avoid a court supervised conservatorship becoming necessary.

Beyond estate planning, however, it is important for disabled and elderly persons to have a support network in place to watch out for their well-being – including welfare checks — and to alert the people who have authority to act (e.g., family members and agents) under the estate planning documents when a disabled or elderly person’s condition is deteriorating.

The foregoing discussion is not legal advice. Consult an attorney for guidance. Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.