Catastrophic Illness

In San Diego, serious illness can occur suddenly. This can be due to a car accident in San Diego County or a San Diego County residence can have a catastrophic illness or accident outside San Diego. No matter where this occurs, there are legal issues when a person cannot make financial or medical decisions for themselves. By careful planning, some issues such as conservatorship and guardianship can be addressed in estate planning documents including a revocable living trust, powers of attorney, advanced health care directives and other legal documents.

For most San Diego residents, the legal document of choice will be a revocable living trust. These are created for several purposes. First, the goal is to avoid probate fees and costs in the event the illness or accident leads to death. Second, the goal is to insure privacy in the distribution of the estate and wishes of the decedent. Third, provisions can be included for health care decisions and for who will take care of the person who is ill and who will take care of their minor children. Fourth, a revocable living trust is much faster for distribution of the estate than probate court which make take up to one year or longer.

Advanced health care directives are part of any estate plan. I am sure all remember the case of Terry Schiavo and the amount of money and conflict and tension that was created since she did not have an advanced health care directive. These advanced health care directives insure that the wishes of the person who is incapacitated and cannot make decisions for themselves are carried out such as when [or when not] to use life support. These will include a durable power of attorney for health care which names the person chosen to make health care decisions. It is best to name a primary and then a secondary and, normally, these are a spouse and/or adult children. These can also include whether or not you would like to donate your organs for scientific, research or transplant purposes. Many persons also have this included on their California Drivers License.

Guardianship can occur when an adult who is a parent or legally responsible for a minor becomes incapacitated such as an accident or catastrophic illness. There are two types of guardianship: of the person and of the estate. Guardianship of the person means that the guardian can make decisions regarding health, education and welfare. Guardianship of the estate means that the guardian controls the finances of the minor. In a revocable living trust, the trustor can name who they would like to be guardians of their minor child[ren] in the event they can no longer handle this responsibility. In some cases, the guardian of the person and guardian of the estate are the same person and in some cases not.

Conservatorship can occur when an adult can no longer take care of themselves due to incapacitation due to serious illness or accident or other cause. There are two types of conservatorship: conservatorship of the person and conservatorship of the estate. Conservatorship of the person means that the conservator makes decision regarding health and welfare and personal decisions. Conservatorship of the estate means that the conservator controls the financial decisions of the person. There are also limited conservatorship which are used for developmentally disabled adults and also mental health conservatorship. In some cases, the conservator of the person is the same as the conservator of the estate and in some cases not. In a revocable living trust, a person can name who they would like to have as their conservator.

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