Does California Probate code make any allowances for differences or conflicts between an Advanced Healthcare Directive (California’s version of a Healthcare POA) and Power of Attorney?
For example, a parent designates one child as their agent for the Healthcare Directive, and the other child as their agent for the Power of Attorney. The parent becomes incapacitated, and both children must step up to manage both the healthcare and finances of their parent. The child in charge of healthcare must place the elderly parent in a long term care facility, and needs funds from their parent’s estate to do so. However, the child with the Financial Power of Attorney refuses to release any funds for a long term care facility.
Let’s add a layer of complication that many children of parents with dementia in the SF East Bay must face. This is the question of Medi-Cal and long term care. In our example, above, the child with the financial power of attorney is refusing to release funds for care because they are aware that there are rules and regulations regarding qualifying for Medi-Cal’s long term care coverage that may be violated if they begin paying for care prior to applying for Medi-Cal. The child with the Healthcare Directive suspects they may be correct, but is too confused by the Medi-Cal system, and does not want to spend money to consult an attorney. The siblings, already under immense stress because of their parent’s failing health, find themselves at an impasse. What are their options?
When a Financial Power of Attorney and Medical Power of Attorney (or Advance Healthcare Directive in CA) have different agents who cannot agree, or have stipulations that conflict with each other, there are several ways the situation can be resolved. The first is perhaps the most simple, but I have seen it overlooked in my years as an Elder Law attorney in Contra Costa County.
1. Read the Documents with a Fine Tooth Comb: Does one or both of the documents contain a clause or section that accounts for the difference or conflict in question. If the documents were drafted by an experienced Estate Planning Attorney in the SF East Bay, there should not be any conflicts that are not resolved between the Power of Attorney and Healthcare Directive.
2. Try to work it out: When emotions and stress levels are high, conflicts arise. Much conflict is born out of misunderstandings and lack of communication. Try to sit down in a neutral or public environment and talk it out. Bring a list of concerns, and try not to leave the conversation without a plan for the next step in place.
2. Consult an Elder Law Attorney: An elder law attorney who works in the county where the parent resides is best equipped to help you with your case. For example, I work with Elder Law clients in Contra Costa County and Alameda County. As an Elder Law attorney centered in Walnut Creek, I understand the procedures of both these courts and am well positioned to resolve issues quickly with minimal cost. If there is a Medi-Cal issue, as in the example above, look for an Elder Law attorney who specializes in both Probate Litigation and Medi-Cal matters.
3. Consider Mediation An Elder Law attorney can represent you in mediating the matter and coming to a swift resolution. While this can be costly, a good attorney can recommend a skilled mediator who can help you resolve the situation and avoid the much higher costs of going to court.
4. Choose Probate Court Last Having a judge resolve your issue for you is often the worst situation you can find yourself in. In most elder law cases I deal with in the SF East Bay, there is often not one obviously wrong party (legally speaking). The cost of resolving your Power of Attorney and Health Care Directive issue in the Probate Court of Contra Costa or Alameda County is guaranteed to be expensive and exhausting. Often, the end result is either worse or the same for both parties as mediation, at 3-4 times the cost. A responsible and ethical Elder Law attorney will almost always recommend mediation.
For questions about a Power of Attorney or Healthcare Directive, or other probate issues, call 925-322-1795 to set up a consultation.