Commonly Encountered Elder Law Terms
October 5, 2012 By Northern California Center for Estate Planning and Elder Law
For seniors or adult children with elderly parents, some of the terms you might commonly encounter in the elder law process can be uncommon. While you should always ask about any terms you are unfamiliar with, here are a couple of the more common you may come across which you need to understand to best grasp many elder law concepts and situations.
Fiduciary Relationships
Many elder law situations involve fiduciary relationships. A fiduciary relationship is one in which one person owes a high standard of care to the person he or she is serving. For example, if you are named trustee of a trust your parents create, you have a legal duty to do what is in the best interests of the beneficiaries. Fiduciaries cannot use their positions to better their own interests at the expense of those whom they serve. This is a legal duty, and failing to meet this obligation can cause significant legal trouble for the fiduciary.
Incapacity
Many elderly people are concerned that they might lose the ability to make their own choices because of medical conditions, illness, or similar situations. Legal incapacity, also known as legal incompetence, occurs when someone loses the ability to make knowing choices. For example, if you suffer from a debilitating cognitive disease such as Alzheimer's disease, you may eventually lose legal capacity. However, only a court can determine if you are legally incapacitated if you do not have a power of attorney or trust which sets forth the criteria for establishing legal capacity. In such documents, the standard usually involves written statements from a treating physician that due to the person’s medical or mental condition, he or she is unable to properly handle his or her affairs. Further, if you are physically incapacitated but remain mentally fit, you can still make decisions and documents even if you have to rely on someone else to write them or even sign them for you.
ABOUT THE AUTHOR: Timothy P Murphy
Experienced estate planning attorneys Sacramento CA of the Northern California Estate Planning Counselors, LLP offers estate planning and business planning resources to residents of Sacramento CA.
Copyright Northern California Center for Estate Planning and Elder Law
More information about Northern California Center for Estate Planning and Elder Law
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Many elder law situations involve fiduciary relationships. A fiduciary relationship is one in which one person owes a high standard of care to the person he or she is serving. For example, if you are named trustee of a trust your parents create, you have a legal duty to do what is in the best interests of the beneficiaries. Fiduciaries cannot use their positions to better their own interests at the expense of those whom they serve. This is a legal duty, and failing to meet this obligation can cause significant legal trouble for the fiduciary.
Incapacity
Many elderly people are concerned that they might lose the ability to make their own choices because of medical conditions, illness, or similar situations. Legal incapacity, also known as legal incompetence, occurs when someone loses the ability to make knowing choices. For example, if you suffer from a debilitating cognitive disease such as Alzheimer's disease, you may eventually lose legal capacity. However, only a court can determine if you are legally incapacitated if you do not have a power of attorney or trust which sets forth the criteria for establishing legal capacity. In such documents, the standard usually involves written statements from a treating physician that due to the person’s medical or mental condition, he or she is unable to properly handle his or her affairs. Further, if you are physically incapacitated but remain mentally fit, you can still make decisions and documents even if you have to rely on someone else to write them or even sign them for you.
ABOUT THE AUTHOR: Timothy P Murphy
Experienced estate planning attorneys Sacramento CA of the Northern California Estate Planning Counselors, LLP offers estate planning and business planning resources to residents of Sacramento CA.
Copyright Northern California Center for Estate Planning and Elder Law
More information about Northern California Center for Estate Planning and Elder Law
View all articles published by Northern California Center for Estate Planning and Elder Law
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
