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Can a Developmentally Disabled Adult Execute a Power of Attorney or Advance Health Care Directive?

On Behalf of | Jan 18, 2023 | Firm News

The short answer to this question is maybe.  It depends on the capacity level of the adult.  The question is raised when a developmentally disabled child turns 18 and is determined to be an adult and their parents no long have authority to make medical or financial decisions for them.  The issue then is whether a limited conservatorship is necessary or can the adult execute a power of attorney and advance health care directive so that a conservatorship can be avoided.

The California Probate Code, under the Due Process in Competence Determinations Act (DPCDA), creates a rebuttable presumption that all persons have the capacity to make decisions and be responsible for their acts or decisions.  Basically, a person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing estate planning documents, and performing other actions.  If there is evidence that a person has a deficit in at least one of the following mental functions – alertness and attention, information processing, thought processes, or ability to modulate mood and affect – then they are determined to lack capacity to make a decision or do a certain act. Each of the functions is further explained in the Probate Code.

The threshold question is whether the person has the capacity to contract.  The California Civil Code provides that everyone except minors, persons of unsound mind, and persons deprived of civil rights have the capacity to contract.  The determination then is determined by the Probate Code which provides that the capacity required to execute a valid power of attorney to handle financial matters hinges on their ability to adequately manage their life.  If they are unable to manage their own personal and financial matters and a valid power of attorney does not exist, then a conservatorship of the estate is required.

The Probate Code differentiates between the capacity to handle finances and the capacity to make medical decisions.  The capacity required to execute a valid advance health care directive is determined by the person’s ability to understand the nature and consequences of a decision and to make and communicate a decision.  The Probate Code goes into more detail as to how this capacity is determined.

An attorney can take steps and have processes in place to determine a necessary capacity level.  This would include a standard capacity determination worksheet and spending sufficient time alone with the adult to discuss the various issues.  Or, documentation from the adult’s medical professionals – primary care physician, psychologist or psychiatrist – stating that the adult has the capacity to handle finances or make medical decisions.  If capacity is found, then the attorney can draft the documents or the California statutory forms can be properly executed per the adults wishes.

If the developmentally disabled adult does not have capacity, then a limited conservatorship for the person and estate has to be in place for someone to make medical and financial decisions for the person.  For more information on limited conservatorships, I will have a new blog out soon!