Incapacity Planning in California

  • Post last modified:August 10, 2023

Incapacity planning is an essential part of estate planning for California residents. Advanced planning with legal documents like powers of attorney and healthcare directives can help ensure your preferences are followed if you cannot decide for yourself because of illness or injury. This type of preparation may also eliminate the requirement for a court-appointed conservatorship.

 Here are some key things to know about incapacity planning in California:

Durable Powers of Attorney

Designating a durable power of attorney enables you to choose a trusted individual to handle your financial and property matters if you lose the ability to do so. This chosen person is referred to as your “attorney-in-fact” or agent. Collaborating with an estate planning lawyer is important to create a thorough, durable power of attorney document that provides your agent with broad authority and incorporates necessary protections.

Advance Health Care Directives

An advance health care directive allows you to make your medical wishes known if you cannot speak for yourself. California has two types of advance directives:

  • The first one is a living will provides instructions about end-of-life medical treatment. 
  • The second is a healthcare power of attorney, which names an agent to make medical decisions on your behalf. Your agent can decide about treatments, procedures, and other medical care if you become incapacitated.


If you become incapacitated and lack proper legal documents, your family may need to go to court to establish a conservatorship. This legal guardianship gives someone authority over your care and finances. Conservatorships can be time-consuming and expensive to establish. Proper incapacity planning can help avoid the need for a conservatorship. 

Review Your Plan Regularly

It’s important to review your advance directives and powers of attorney every few years and when major life events occur. Update the documents as needed to ensure they still reflect your wishes. Also, discuss your plan with your agents and family members so they understand their role.  With proper planning, you can protect yourself and your family from the stresses of potential incapacity and figuring out what to do when it happens. 

What Happens if You Don’t Have a Plan?

If you don’t have any incapacity planning documents, your family may need to go to court to obtain a conservatorship or guardianship. This can be costly and time-consuming. When making decisions about your care, the court must follow California Probate Code standards that provide broad guidance but are not tailored to your specific wishes. Additionally, without an incapacity plan, your family may have difficulty deciding about medical treatment and financial management.

Get Peace of Mind With an Estate Planning Attorney in California

Proper planning means you can be more prepared when making decisions for future care. An incapacity plan in place can help secure your retirement, giving you one less thing to worry about as you age. Our California trust and estate planning lawyer is here to help. Contact us today.