Senior Resource Directory Senior Resource Directory

Conservator of last resort, in ves -
ti gates need for conservatorship
by Public Guardian for frail elderly
and brain inpaired adults.
What Can Be Done
To Plan For The
Management Of As sets?
Durable Power of Attorney for
Property Management may be
con sid ered an alternative to trusts
or Con ser va tor ship. It must be created
while the person still has legal
capacity. The creator of the power,
or “prin ci pal,” may choose to have
all his/her assets or only specifi ed
assets managed by another person,
the “agent” or “attorney in fact,”
and may defi ne the manner in
which the power is used. The principal
may choose to have the power
to be effective im me di ate ly upon
its creation and not be affected by
his/her subsequent in ca pac i ty, or
to have it effective only after he/
she later becomes in ca pac i tat ed.
The principal may specify the
cir cum stanc es under which his/
her incapacity will be determined.
Express powers are necessary to
give the agent the powers needed
for gifting and self-gifting, dealing
with retirement benefi ts, government
benefi ts, pension benefi ts or
IRS matters. The prin ci pal may revoke
a power of attorney for health
or fi nancial affairs at any time as
long as s/he is still com pe tent.
The court can revoke this power if
it determines that there has been
mis man age ment. However, re vo -
ca tions may be too late to recover
assets. Thus as with the Durable
Power of Attorney for Health Care,
and Ad vance Health Care Di rec -
tives, it is important to consult an
attorney regarding the utilization
of the Durable Power of Attorney
for Property Management, even
though it can be utilized without
an attorney’s assistance. The agent
has a great deal of control over
an individual’s assets. Although
the Civil Code provides for sanctions
against those refusing to
honor valid documents, banks and
bro ker age houses may not accept
the Durable Power of Attorney for
Property Management (often they
provide their own). It is important
to check with your fi nancial institution
to determine what they will
require and to sign the institution
forms.
If a fi nancial institution resists
honoring the agent, ask the su per -
vi sor to send a copy of the Durable
Power to their legal department for
evaluation and approval.
A Living Trust
Can provide protection in a number
of areas, including avoidance
of probate, avoidance of Con ser va -
tor ship, and the protection of privacy.
It is an ar range ment through
which the property of a person
(the “settlor”) is transferred into a
trust, including real estate, bank
accounts, stocks and bonds, and
insurance policies. The trust instru
ment will specify how property
is to be used during the benefi ciary’s
life and who is to receive the
contents of the trust after his/her
death. The powers granted in the
trust and the powers granted in the
LEGAL
Durable Power of Attorney should
be consistent and parallel.
Declaration of Homestead
Persons who own their own home
may be able to protect a portion
of the equity value, in the event
of a forced sale in order to satisfy
unpaid debts, by pre par ing and
recording a dec la ra tion of homestead.
This cannot protect against
Medi-Cal eligibility re stric tions
regarding assets.
Conservatorship of the Estate
Similar to the Conservatorship
of the person, this allows for the
man age ment of the conservatee’s
money and other property. Court
pro ceed ings to designate a con ser -
va tor are required. This is usually
the last method considered, but
may be necessary if the individual
is already unable to manage his/
her own affairs. A well-drafted Durable
Power of Attorney for Property
Management can avoid the need
for a con ser va tor ship of the estate
in most cases, if executed when the
person still has legal capacity.
Public Benefi ts Planning
Planning for public benefi ts may
be desirable if the incapacitated
adult even tu al ly needs the care of
Consultation and Representation for
•Estate and Long Term Care Planning
•Eligibility for Medi-Cal Benefits
•Conservatorship Proceedings
•Durable Powers of Attorney
•Trust, Probate and Conservatorship Litigation
David C. Turpin
ATTORNEY AT LAW
National Academy of Elder Law Attorneys
735 State Street Suite 623 • Santa Barbara, CA 93101
805-965-3079 • dturpin@turpinlaw.com
2005-2007 SANTA BARBARA COUNTY SENIOR RESOURCE DIRECTORY 69