Family Law Questions? Ask a Family Lawyer Online.
Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.
A health care directive is a set of written instructions that a person gives that specify provides what actions should be taken for their health if they are no longer able to make decisions on their own due to illness or incapacity. The instructions must be followed as written.
In contrast, a health care directive with power of attorney means that someone is appointed as power of attorney (also called a health care proxy) to make decisions on the person's behalf when he/she is incapacitated.
Thus, the main difference is that the health care directive has a set list of instructions and the health care directive w/ power of attorney gives the named POA the authority to make decisions for the person.
There is certainly a need for someone to be able to help make decisions for him. HOWEVER, a health care directive must be signed voluntarily by your father, and it doesn't sound like there's any way he would sign anything like this.
If that's the case, then the only thing you could do is file a petition to be appointed as your father's conservator. If you can prove that your father has dementia and cannot attend to his own personal needs, including his medical care, then the court can appoint you as conservator.
Thus, if your father will not sign a health care directive w/ or without a POA, the only thing you can do is file a petition for conservatorship.
Ok, well that's good!
The next issue is whether or not the health care directive says that your father must be incapacitated or mentally incompetent before you can exercise your rights as outlined in the document. Generally, there is a requirement of incapacity or mental incompetence before the authority is envoked.
Thus, your father's doctor/s would have to diagnose him with a mental disorder - - like dementia - - before you can take over making his medical decisions.
Well, if he is deemed mentally incompetent, he couldn't perform any legal act - - including making changes to his trust. This is so because someone must be able to know and understand what he/she is doing in order to sign legal documents.
The best thing you could do is IF your father were deemed mentally incompetent, because of dementia, would be to file for conservatorship over him as well. This would allow you to control his affairs, and would prevent any action he may take from being legally enforceable.
Please let me know if you have any additional questions. Also, please take time to positively rate our conversation so I may receive credit for my time. Thanks!
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