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Thousands Oaks Estate Planning Blog

C19 UPDATE: Beware the Rush to Make Your Own Will Online

Estate Planning Purpose - Last Will
Papers with Last Will and Testament wording

With COVID-19 affecting more and more Americans, people across the country are scrambling to set up wills and end-of-life directives. Over the last two weeks, online will companies have seen an explosion in users, according to the article, “Coronavirus Pandemic Triggers Rush by Americans to Make Online Wills,” published by CNBC.com.

However, as online wills grow in popularity, estate and elder lawyers increasingly caution against using them, for several reasons.

  • Will the documents be legally valid? Since most of these do-it-yourself wills are created and executed without any oversight from an attorney, a larger number of wills may not beexecuted in compliance with the proper will formalities, and that could end up invalidating the will.
  • Do you fully understand the questions and consequences of your answers? There are many nuances in estate planning, as well as a good bit of legal jargon. Confusion over the question or the consequences of a decision can result in costly mistakes … and could even mean your will won’t hold up to a challenge in court.
  • What about asset protection? There is more to estate planning than just giving your stuff away after you die. How you transfer ownership of your assets can mean the difference between a protected inheritance and legacy for many generations … or the squandering or loss of a person’s life’s work within a few years … or months … after they pass away.
  • Is there any planning for long-term care? It’s estimated that more than half of people turning age 65 who will need some type of long-term care services in their lifetimes. Proper estate planning should balance the possibility that you will need assistance paying for nursing home care (Medicaid), with other estate planning goals. Mistakes in this area could disqualify you from receiving assistance should you need it.

As COVID-19 keeps people home, meeting with a lawyer to create a will could not be easier. In most states, a lawyer’s services have been deemed “essential,” even during stay-at-home orders. We are doing everything we can to make our services as easy and convenient for you as possible, including meeting over telephone, online video services and other innovative ways to ensure you get the planning you need while complying with all safety measures.  We are ready and available to make sure you have a proper will, give us a call to get started.

Resource: Coronavirus Pandemic Triggers Rush by Americans to Make Online Wills, https://www.cnbc.com/2020/03/25/coronavirus-pandemic-triggers-rush-by-americans-to-make-online-wills.html

The Second Most Powerful Estate Planning Document: Power of Attorney

All too often, people wait until it’s too late to execute a power of attorney. It’s uncomfortable to think about giving someone full access to our finances, while we are still competent. However, a power of attorney can be created that is fully exercisable only when needed, according to a useful article “Power of attorney can be tailored to circumstances” from The News-Enterprise. Some estate planning attorneys believe that the power of attorney, or POA, is actually the second most important estate planning document after a will. Here’s what a POA can do for you.

The term POA is a reference to the document, but it also is used to refer to the person named as the agent in the document.

Generally speaking, any POA creates a fiduciary relationship, for either legal or financial purposes. A Medical or Healthcare POA creates a relationship for healthcare decisions. Sometimes these are for a specific purpose or for a specific period of time. However, a Durable POA is created to last until death or until it is revoked. It can be created to cover a wide array of needs.

Here’s the critical fact: a POA of any kind needs to be executed, that is, agreed to and signed by a person who is competent to make legal decisions. The problem occurs when family members or

Image of a hand with a pen signing papers

spouse do not realize they need a POA, until their loved one is not legally competent and does not understand what they are signing.

Incompetent or incapacitated individuals may not sign legal documents. Further, the law protects people from improperly signing, by requiring two witnesses to observe the individual signing.

The law does allow those with limited competency to sign estate planning documents, so long as they are in a moment of lucidity at the time of the signing. However, this is tricky and can be dangerous, as legal issues may be raised for all involved, if capacity is challenged later on.

If someone has become incompetent and has not executed a valid power of attorney, a loved one will need to apply for guardianship. This is a court process that is expensive, takes several months and leads to the court being involved in many aspects of the person’s life. The basics of this process: three professionals are needed to personally assess the “respondent,” the person who is said to be incompetent. The respondent loses all rights to make decisions of any kind for themselves. They also lose the right to vote.

A power of attorney can be executed quickly and does not require the person to lose any rights.

The biggest concern to executing a power of attorney, is that the person is giving an agent the control of their money and property. This is true, but the POA can be created so that it does not hand over this control immediately.

This is where the “springing” power of attorney comes in. Springing POA means that the document, while executed immediately, does not become effective for use by the agent, until a certain condition is met. The document can be written that the POA becomes in effect, if the person is deemed mentally incompetent by a doctor. The springing clause gives the agent the power to act if and when it is necessary for someone else to take over the individual’s affairs.

Having an estate planning attorney create the power of attorney that is best suited for each individual’s situation is the most sensible way to provide the protection of a POA, without worrying about giving up control while one is competent. Schedule a complimentary consultation with one our attorneys to begin preparing your power of attorney.

Reference: The News-Enterprise (Feb. 24, 2020) “Power of attorney can be tailored to circumstances”

C19 UPDATE: Emergency Estate Planning Decisions to Make Right Now

Though it may be hard not to panic when the grocery store shelves are empty, the number of confirmed cases of COVID-19 keeps rising, and we see sobering statistics across the globe … we will not overcome this challenge with a panicked response.

Image of building with word emergency

Nonetheless, there are certain things we all need to be doing right now – and your public health officials are the best resource on how to stay personally safe and help prevent the virus from spreading.

When it comes to the seriousness of this outbreak, however, there also are some critical estate planning decisions you should make – or review – right now.

Ask yourself these questions:

  1. Who will make medical decisions for me should I become severely ill and unable to make these decisions myself?
  2. Who will make my financial decisions in that same situation — for example, who will be authorized to sign my income tax return, write checks or pay my bills online?
  3. Who is authorized to take care of my minor children in the event of my severe illness? What decisions are they authorized to make? How will they absorb the financial burden?
  4. If the unthinkable happens – what arrangements have I made for the care of my minor children, any family members with special needs, my pets or other vulnerable loved ones?
  5. How will my business continue if I were to become seriously ill and unable to work, even remotely … or in the event of my death?

These are the most personal decisions to make right now to protect yourself and your loved ones during this emergency. Now is also a good time to ask yourself if you have plans in place for the smooth transfer of your assets and preservation of your legacy.

We are ready to help walk you through these decisions, understand the ramifications of your choices, and memorialize your plans in binding legal documents. We are currently offering no-contact initial conferences remotely if you prefer. Book a call now and let us help you make the right choices for yourself and your loved ones.

Legal Protection against Covid-19 – a MUST!

The rapidly spreading coronavirus has the entire world on edge and it should.  The devastation from this disease is unfortunately escalating every day.  With the large number of people who have

Family on the beach watching the sunset

already contracted the disease coupled with the sharply rising number of new cases and the mounting death toll, this pandemic is something for everyone to take very seriously.  The coronavirus is indeed an unprecedented health risk.

Realizing the health consequences associated with Covid-19, people are now taking strong precautions to mitigate their exposure.  This is a smart decision.  Immediately implementing safeguards will undoubtedly save lives and result in far fewer people contracting the disease in the first place.

That being said, there is another risk directly connected with contracting Covid-19, and that risk is dealing with the legal consequences of becoming seriously sick.  Families need to take the legal risk just as seriously as the health risk and immediately act to properly plan for their family’s well-being. I say this because Covid-19 is not waiting for anyone and therefore, families can’t wait either.

Everyone is very concerned, if not downright afraid, that they or a family member will become infected and the unknown consequences that they might face.  Will the person just have a mild case and get well in a couple of weeks, or will it develop into a serious illness resulting in separation, quarantine, pneumonia, incapacity or even death?

Once the person tests positive for Covid-19, the legal ramifications begin to enter the picture and they too range from mild to severe.  Some of the questions that might arise are:

Will the person need assistance with their health care?

If so, who will provide it and how will it be paid?

Who will make medical decisions if the person can’t make them?

Has the person signed a HIPAA release allowing doctors and hospital personnel to talk freely with designated persons (which may or may not include family members)?

Who will make financial decisions, sign tax returns, deal with retirement accounts and pay bills for the person?

What are the desires of the person for the administration of nutrition and hydration during a time of incapacity?

What are the desires of the person for life support and end of life?

Who will take care of any minor children?

Does the person want to be buried or cremated and how is this going to be paid?

Does the person have a will or trust appointing someone to administer their estate and the disposition of assets?

Will there be a probate of the estate?

These questions are just a sample of some of the issues that every family needs to consider and then develop a legal plan tailored to their own situation.  With proper legal documents executed, their desires will be legally implemented.  As I tell my clients, “we want your voice to be heard when you can’t speak.”  The only way to accomplish this is through a proper estate plan covering crucial issues and legally expressing a person’s intentions and directions.  That plan may include a revocable trust, pourover will, durable power of attorney for finances, health care directive, HIPAA release document, and other relevant documents.  Such documents can keep a person’s life and their estate private, appoint trusted persons to serve in fiduciary roles if necessary, and avoid a court probate or conservatorship.

If there is no plan and no legal documents, then by default these questions are forced to be answered through the court system which is time consuming and expensive.  The courts are also filled with people.  At this time of social distancing and a tanked stock market, being forced into public courtrooms and spending money on large legal bills is not the thing to be doing.  Yet, many people will wind up in exactly this position because they failed to take appropriate legal action now to avoid these dire consequences.

At the moment of this writing most courts are closed so access to a judge will likely be delayed for weeks or months.  This may be too late for many people.  Therefore, it is incumbent for families to take the opportunity to plan into their own hands and make the law their friend and not their foe.  And do it now.  Covid-19 is not waiting on anyone and you can’t wait either.

Another very important note to remember.  The need for an immediate plan applies to everyone age 18 and older.  Once a person reaches age 18, the law deems the person to be an “adult” where the person stands on their own and the parents no longer have any legal power over their adult child.  Thus, parents of a 20 year old daughter have no standing to make medical decisions on their daughter’s behalf because she is an “adult”.  Moreover, her doctors may legally refuse to discuss any aspects of their daughter’s health issues pursuant to HIPAA laws.  She must have her own separate documents to legally protect herself in case something were to happen.  In this surreal time of young adults being just as “at risk” to contract Covid-19 as older people, the need for every adult to make a plan is vital.  With a proper legal plan in hand, both the adult child, as well as mom and dad, should gain peace of mind.

As a final note, I have been practicing estate planning and estate administration law for nearly 40 years.  Never in my lifetime have I witnessed a health crisis of this magnitude with California in lock down.  Last night I thought of how loved ones who contract the disease and their family members are going to be impacted legally by the coronavirus.  I want the best outcomes for everyone and I hope this will assist in some way.

What Is So Important About Powers Of Attorney?

Signing important legal documents
Picture of hand signing a legal document

Powers of attorney can provide significant authority to another person, if you are unable to do so. These powers can include the right to access your bank accounts and to make decisions for you.

AARP’s article from last October entitled, “Powers of Attorney: Crucial Documents for Caregiving,” describes the different types of powers of attorney.

Just like it sounds, a specific power of attorney restricts your agent to taking care of only certain tasks, such as paying bills or selling a house. This power is typically only on a temporary basis.

A general power of attorney provides your agent with sweeping authority. The agent has the authority to step into your shoes and handle all of your legal and financial affairs.

The authority of these powers of attorney can stop at the time you become incapacitated. Durable powers of attorney may be specific or general. However, the “durable” part means your agent retains the authority, even if you become physically or mentally incapacitated. In effect, your family probably won’t need to petition a court to intervene, if you have a medical crisis or have severe cognitive decline like late stage dementia.

In some instances, medical decision-making is part of a durable power of attorney for health care. This can also be addressed in a separate document that is just for health care, like an advanced health care directive or durable power of attorney for health care.

There are a few states that recognize “springing” durable powers of attorney. With these, the agent can begin using her authority, only after you become incapacitated. Other states don’t have these, which means your agent can use the document the day you sign the durable power of attorney.

A well-drafted power of attorney helps your agent help you, because she can keep the details of your life addressed, if you cannot. That can be things like applying for financial assistance or a public benefit, such as Medicaid, or verifying that your utilities stay on and your taxes get paid. Attempting to take care of any of these things without the proper document can be almost impossible.

In the absence of proper incapacity legal planning, your loved ones will need to initiate a court procedure known as a guardianship or conservatorship. However, these hearings can be expensive, time-consuming and contested by family members who don’t agree with moving forward.

Don’t wait to do this. Every person who’s at least age 18 should have a power of attorney in place. If you do have a power of attorney, be sure that it’s up to date.  Speak with one of our experienced estate planning attorneys at Family Security Law Group, APC to help you create these documents.

Reference: AARP (October 31, 2019) “Powers of Attorney: Crucial Documents for Caregiving”

 

What Critical Estate Planning Document are Californians Missing?

The California Probate Code sets out the requirements and process for executing a Durable Power of Attorney for Assets and an Advance Health Care Directive, also known as a health care power of attorney. These documents enable a person (the principal) to appoint an agent (a trusted friend or relative) to make financial and health care decisions on her behalf.   If the principal, becomes incapacitated, the agent will decide her medical procedures, treatment and other care and manage her financial affairs.

Insurance News Net’s recent article entitled “Finance Experts Warn: 66% of Californians Don’t Have a Key Estate Planning Document” explains that the law enables the principal to do the following:

  • Detail specific instructions on certain medical issues, such as end-of-life care and pain relief;
  • State her wishes concerning the donation of organs;
  • Name a physician who has primary responsibility for medical care; and,
  • Detail specific instructions to handle financial accounts and matters.

Too many people think they’re finished with their estate plan, after creating a will or trust. However, that leaves some critical gaps. A comprehensive, well-crafted estate plan isn’t just what happens to your property at death. It should also contemplate what happens if you’re incapacitated and unable to make decisions on your own, which is addressed with a durable power of attorney for assets and an advance health care directive.

Here’s a tough situation that individuals could experience without a power of attorney for assets and a health care power of attorney, especially for family. If you don’t have a power of attorney for assets, your spouse or children will have difficultly gaining access to your financial accounts to continue paying your monthly expenses and possible health care related expenses while your incapacitated.  If you don’t have a health care directive, your medical care might be on hold. Despite that the fact you express your wishes to someone, that doesn’t mean it’s legally binding. As a result, without a power of attorney for assets and health care, the only way your spouse, children, or other family members can obtain the authority to make health care decisions, is to go to court and file a petition to act on your behalf. This can take some time, especially if they’re not all in agreement and can incur unnecessary expenses.

By preparing an advance health care directive, you give your agent decision-making authority via the document instead of through the courts.

There are certain state-specific requirements involved with this process, like having people observe and sign as witnesses, or even having it notarized. Our qualified estate planning attorneys are here to help you draft it correctly.

Reference: Insurance News Net (Jan. 16, 2020) “Finance Experts Warn: 66% of Californians Don’t Have a Key Estate Planning Document”

Why you need an estate plan

Here’s Why You Need an Estate Plan

It’s always the right time to do your estate planning, but it’s most critical when you have beneficiaries who are minors or with special needs, says the Capital Press in the recent article, “Ag Finance: Why you need to do estate planning.”

While it’s likely that most adult children can work things out, even if it’s costly and time-consuming in probate, minor young children must have protections in place. Wills are frequently written, so the estate goes to the child when he reaches age 18. However, few teens can manage big property at that age. A trust can help, by directing that the property will be held for him by a trustee or executor until a set age, like 25 or 30.

Probate is the default process to administer an estate after someone’s death, when a will or other documents are presented in court and an executor is appointed to manage it. It also gives creditors a chance to present claims for money owed to them. Distribution of assets will occur only after all proper notices have been issued, and all outstanding bills have been paid.

Probate can be expensive. However, wise estate planning can help most families avoid this and ensure the transition of wealth and property in a smooth manner. Talk to an experienced estate planning attorney about establishing a trust. Farmers can name themselves as the beneficiaries during their lifetime, and instruct to whom it will pass after their death. A living trust can be amended or revoked at any time, if circumstances change.

The title of the farm is transferred to the trust with the farm’s former owner as trustee. With a trust, it makes it easier to avoid probate because nothing’s in his name, and the property can transition to the beneficiaries without having to go to court. Living trusts also help in the event of incapacity or a disease, like Alzheimer’s, to avoid conservatorship (guardianship of an adult who loses capacity). It can also help to decrease capital gains taxes, since the property transfers before their death.

If you have several children, but only two work with you on the farm, an attorney can help you with how to divide an estate that is land rich and cash poor.

Reference: Capital Press (December 20, 2018) “Ag Finance: Why you need to do estate planning”

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