If you’re like most people, you’ve heard the term, “living will,” but have some questions about it.  What is a living will?  Why do I need one?  Is it the same as a will?  What’s it all matter anyway?

In general, the term “living will” refers to a document in which a person can set forth his or her wishes relating to future medical care, in particular, end-of-life care.  It is different than a Last Will and Testament wherein you set forth your instructions for your estate following your death. Unfortunately, there is no consensus among the states about what constitutes a living will.  While some states specifically authorize the use of living wills, others have adopted documents such as durable powers of attorney for health care, advance health care directives, directives to physicians, and other similar documents.

In California, the document which serves as both a durable power of attorney for health care and a living will is called an Advance Health Care Directive.  In this document, which has a statutorily prescribed format, you can designate an “agent” to make medical decisions on your behalf, normally when you are unable to do so due to some physical or mental infirmity and to control the disposition of your remains.  In the same document, you can also set forth your preferences concerning such matters as end-of-life care, relief of pain and organ donation, among others.

These Directives are a critical part of a comprehensive estate plan that addresses not only the handling of affairs following death, but the need for decision in the event one becomes incapacitated.  Without one, you risk putting yourself and your loved one’s through much agony.

Consider the case of Terri Schiavo of Florida.  Terri didn’t put her wishes about end of life care in a legal recognized writing; and, when she collapsed, she was hooked up to life support machines.  When it became clear to her doctors and husband that she would not get better, her husband sought to have the life support machines removed, to let Terri die naturally.

Terri’s parents disagreed.  Years of court battles followed.  Fifteen years after being put on life support, it was finally removed and Terri died naturally.  At her death, an autopsy was conducted and it was confirmed that Terri had been brain dead the entire fifteen years.

If you don’t want this to happen to you, you need to create and sign an Advance Health Care Directive; talk to your family, explaining your wishes; and ensure that the Directive is available when needed.

If you don’t have an Advance Health Care Directive, consult with an experienced and qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

An advance health care directive is a written document authorized under California law that allows you to take control of your medical care. By creating an advance directive before you become too ill to refuse certain medical treatments, you can take control of your future health care while you are still mentally able to do so. However, if you become mentally incompetent or unable to create an advance directive, you lose control of the ability to choose medical treatments.

Some states refer to advance health care directives as “living wills,” “personal directives,” “advance medical directive.” or “medical powers of attorney.” By using an advance directive, you can appoint someone else to make medical decisions on your behalf if you become unable to do so. Obviously, you should appoint an adult you trust. If you do not want medical professionals to use advance life-saving procedures, you need to state this in your advance medical directive.

Creating an advance directive before it’s too late is imperative. You cannot create an advance medical directive if you become mentally incoherent. Because you may not be able to control these events, you should consider creating an advance directive now. Those with chronic health conditions or terminal illnesses face unique challenges, and by considering health care issues now, they can minimize the chances of receiving medical treatments they would have refused.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

States have historically allowed people to execute “Do Not Resuscitate” orders that, as the name implies, order physicians not to perform any procedures to resuscitate the individual if he or she is not breathing or has gone into cardiac arrest. Oregon, along with a number of other states, goes one step further — and seniors appear to like the move. California has authorized a two-page form called a “Physician Orders for Life-Sustaining Treatment”, or POLST for short, that allows an individual to make choices ahead of time in the event he or she needs serious, life-sustaining treatment. Although similar to a living will, the POLST form does not designate someone to make decisions for the patient in the event that the patient is unable to do so.

The California form provides the option to make decisions regarding three areas of treatment — Cardiopulmonary Resuscitation, or CPR, Medical Interventions and Artificially Administered Nutrition. The individual executing the form has the option to select a response in each section.

Not surprisingly, the response to the option to complete a POLST form has generally been positive. Many seniors questioned about the form indicate that the ability to complete a POLST form gives them the feeling of control and choice that they have grown accustomed to over a lifetime. Knowing ahead of time that your wishes will be honored, regardless of what those wishes are, when it comes time to die appears to lesson the fear and worry that often accompanies growing old.

However, the POLST form and its implementation have not been without their critics.  Critical decisions concerning such important matters as end-of-life care should not be made casually and in isolation from other crucial planning for one’s aging, disability and death.  A POLST form is, for most people, not a good substitute for a more comprehensive Advance Health Care Directive.

The best way to tailor a plan for dealing with end-of-life medical decision making is to consult with an experienced and qualified estate and elder care planning attorney who can guide you through the options and give you the peace of mind you seek.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

You, and every person over the age of 18, need two powers of attorney.  A power of attorney names a trusted helper to act on your behalf when you are unable to do so yourself.

The Financial Power of Attorney

The financial power of attorney authorizes your trusted helper to sign your name and conduct business on your behalf should you become incapacitated.

Your trusted helper is called an “agent” or “attorney in fact,” depending on state law.  It is wise to name a succession of agents in case your appointed agent is unable or unwilling to serve.

Your agent must follow the instructions in your financial power of attorney and act in your best interest.  He or she must keep all assets separate from his or her own, invest prudently, and keep complete records.

Important agent characteristics would be:  organization, trustworthiness, and good communication skills.

The Medical Power of Attorney

The medical power of attorney, known in California as an Advance Health Care Directive, authorizes your trusted helper to consent to medical procedures and make other medically related decisions on your behalf should you become incapacitated.

Again, your trusted helper is called an “agent” or “attorney in fact,” depending on state law.  It is wise to name a succession of agents in case your appointment agent is unable or to serve.

Your agent may make decisions such as hiring or firing doctors, consenting to an operation, choosing a hospital, deciding whether you get a blood transfusion, or whether you try a new medication.

In your Directive, you can also set forth your treatment preferences, including end of life care, that your agent cannot override it.  This means that because you have made a medical decision while you had capacity, your decision is respected and cannot be overturned.

Important agent characteristic would be:  ability to be assertive with doctors and willingness to honor your medical preferences.

If you have questions about the two powers of attorney that you need, consult with an experienced and qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Estate planning is important for everyone; however, it cam be even more important for members of the LGBT community. Because of the unique, and often varied, legal position that a partner has among the states, estate planning is of particular importance in order to ensure that your partner is provided for in the event of your death, and recognized in the event of your incapacity. While each situation is unique, consider incorporating the following tools into your estate plan:

Last Will and Testament: This is your chance to leave specific items or assets to your partner in the event of your death. You may also wish to appoint him or her as executor of your estate.  Wills may be all that is needed for transfers at death for modest, simple estates.

Trust: A trust can potentially be used in a variety of ways. It may allow control of assets to pass to your partner in the event of your incapacity. It can also provide a direct route for assets to pass upon your death without the need for them to go through probate.  Trusts generally work better than Wills for estates that include real estate or are moderate to large in size.

Advance Health Care Directive: This critical document allows you to legally appoint your partner to make healthcare decisions for you in the event of your incapacity. It can overcome problems with decision making and visitation should there be a hostile family environment.

Financial power of attorney: A power of attorney can be used to give your partner the legal authority to act as your agent in legal transactions. If the POA is made durable, this authority will also survive your incapacity in most states.

Pay on Death Accounts: Financial accounts and titles can sometimes be converted to “pay on death” accounts. Typically, this means that ownership of the asset will immediately transfer to your partner upon your death. In the case of bank accounts, the funds held in the account will be payable to your partner upon your death.  Use of POD accounts has its pros and cons.  Get competent legal advice before using this strategy.

The best place to start in your planning efforts is to consul

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Occasionally, a client will ask, “Do I really need all of these estate planning documents?”  Usually, it’s rhetorical questions and a joke about trees, but we answer the question anyway.  After all, estate planning attorneys like trees.

The estate planning documents that your attorney will recommend will be based upon your concerns, finances, goals, and the law.  The consequences of not having these documents are often harsh.

While you may need advanced estate planning, the typical basic (i.e. foundational) planning includes, at a minimum, the following:

• A will to nominate a guardian for minor children, select an executor to handle your estate, and give instruction for the distribution of your assets. For more modest estates, a will may be all that is necessary to distribute your estate at your death.
• A revocable living trust to provide for your incapacity, appoint trustees in the event of disability and death, and distribute your assets. For persons who have more than modest estates, a trust is an effective way to distribute assets after your death without having to endure the rigors and expense of a probate proceeding.  If you have a trust, you still need a will, but it’s called a “pour-over-will” instead of a traditional will.
• A financial power of attorney to authorize an agent to manage your day to day business affairs if you can’t and to address matters not handled by your trust.
• An advance health care directive to authorize an agent to make health care decisions on your behalf, access your medical records, communicate with medical professionals and carry out your health care choices.
• HIPAA release to follow federal privacy laws and enable your medical providers to communicate with your health care power of attorney agent.

Ensure that all of these trees are put to good use by making your estate planning documents available to those named in trusted helper positions.

To create a plan that is personalized to your situation, speak with an experienced and qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Your estate plan must be in writing to be legally valid; conversations with your spouse or other family members are not enough.  Without written directions and authorization, family discord and upset may result and your wishes may not be followed.

Don’t Want to be Hooked to Life Support Machines, Put it in Writing in an Advance Health Care Directive

For example, Terri Schiavo, the Florida woman kept on life support for 15 years, had reportedly told her husband that she didn’t want to be hooked up to machines; but, she didn’t put it in writing.  After she collapsed in her home, she went into an irreversible coma.  Her husband sought to have the life support machines removed in honor of Terri’s wishes; Terri’s parents disagreed and a public and painful battle ensued.  In the end, when life support was finally removed, 15 years later, an autopsy showed that Terri had been brain dead since the very moment she dropped.  In California, the document that could have been used to avoid this tragic conflict is an Advance Health Care Directive. In this document, one can hand pick the person who will make decisions in the event of incapacity as well as giving direction about health care decisions.

Want Your Children to Inherit Your Retirement Accounts, Put it in Writing in Your Beneficiary Designations

If you want your children or someone else to inherit your retirement accounts, life insurance, pension, or annuity, you must designate those persons as beneficiaries in the asset contract.  Telling someone who you want to inherit what will not work.  And, if you change your mind, update your beneficiary designation, in writing.

Want Your Granddaughter to Inherit Your Book Collection, Put it in Writing in Your Will or Trust

Unless you’re going to pass along your family heirlooms and personal treasures now, you need to put your wishes in writing in your will or trust.  This is especially important if all of your children and grandchildren are not also all the children and grandchildren of your spouse.   For example, you’re in a second marriage and you have children from a previous relationship.

If your estate plan is not in writing, consult with a qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

You’ve probably heard of the terms “will” and “living will.”  However, if you are like most people, it may be confusing to fully understand the differences between these terms.  While they are both very different, it is important to implement both into your estate planning.  Take a look at what both of these legal documents offer:

A will, also known as a last will and testament, is only effective after you die.  It has no effect during your lifetime.

A living will is only effective during your lifetime.  It is effective at the end of your life when you are in an irreversible coma, vegetative state, or are terminally ill and at the end of life.  Once you die, it is no longer in effect. In California, a living will is not commonly used as a stand alone document.  The typical end of life decisions are most commonly incorporated into a document known as an advance health care directive. In that document, you can also name a health care agent to make health-related decisions when you are no longer able to make them for yourself.

A will is used to appoint an executor, name guardians for your children, and instruct asset distribution.  Without a will, the court can make these decisions for you.

A living will makes a healthcare decision ahead of time.  This healthcare decision is whether or not you wish to remain on life support and be subject to other medical heroics if you are terminally ill and at the very end of life.

A will is only effective if trusted helpers know where it is located.  Make sure that your trusted helpers know where all estate planning documents are kept.  It is also a good idea to have a list of usernames and passwords.  Your trusted helpers should also be able to easily find your estate planning attorney’s contact information.

A living will is effective if trusted helpers and your medical professionals have it available.

If you have any questions regarding the differences between a will and living will, consult with an experienced and qualified estate planning attorney.  An estate planning attorney can help to ensure that you have the proper estate planning in place.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

When you’re healthy, it’s hard to imagine being unhealthy.  But it happens; in fact, if you’re in your thirties or forties, you are three times more likely to become incapacitated in any one year than to die.  Incapacity refers to the inability to provide informed consent for medical decisions; it also refers to the inability to manage your finances and make day-to-day personal business decisions.

Incapacity can be caused by a car accident, work accident, medicine overdose, stroke, head injury, dementia, and the like.  Incapacity can be temporary or permanent.  And, if you don’t have your own incapacity plan in place, a court will likely take over and create a plan for you.  The court’s plan may not be what you would want.

For example, if you are incapacitated for more than a brief period and you don’t have your own plan in place, a court will hold a conservatorship proceeding.  The court will hear evidence as to your capacity and determine whether you have legal capacity, or not.  If it determines that you do not (even in some cases where you object), the court will appoint a conservator to make medical decisions on your behalf and a conservator to make financial decisions on your behalf.  The court will oversee the ongoing conservatorship.

Conservatorships are a total loss of control and are very expensive.  The court takes charge and may appoint a stranger, not necessarily a family member, to manage your assets and handle your financial decisions.  Conservatorships are expensive because you need to pay court fees, conservator fees, medical witness fees, and, likely, two attorneys’ fees (one attorney for you and one for the family.)  Fees are ongoing because the court continues supervision.

A comprehensive incapacity plan in California includes an advance health care directive, living, HIPAA release, and organ donation authorization for health related issues.  It also includes a financial power of attorney and/or a revocable living trust.  If you don’t have these incapacity planning documents, or if your documents are more than a few years old, consult with a qualified and experienced estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

As you go through life, you need to make sure that you have a valid and comprehensive estate plan in place.  An estate plan will allow you to live your life with less stress, and can ensure that your affairs are in order, no matter what.  Take a look at the 5 questions below to ask yourself about your estate plan.

Do you have a will or trust in place?  If you’re just beginning your planning, you may not have a will or trust.  These are fundamental planning tools.  You can appoint a trusted helper to handle your estate affairs, appoint a guardian for your minor children, and determine how your property will be distributed to your chosen beneficiaries.  If you ignore the need for a will or trust, you won’t be able to have a say in these important matters.

Have you considered incapacity planning?  If you’re ever incapacitated, you won’t be able to communicate and legally effectuate your wishes.  With the right plan in place, you can appoint trusted helpers to make financial and medical decisions on your behalf.  You can also outline important wishes such as end of life treatment decisions. These could include financial powers of attorney and advance health care directives.

Have you planned so that your family is always protected?  Life insurance is one tool to consider as part of an estate plan.  This makes it possible for your loved ones to have the money that they need to pay last expenses, debts, and future bills.

Do you want to avoid probate?  Many people choose to avoid probate because it’s expensive, takes a long time, and makes your affairs public.  If you want to keep your personal information private, and make sure that your loved ones receive their inheritances quickly, consider probate avoidance techniques which may include a living trust.

Is your estate plan up to date?  Many people create a plan, but fail to update.  You need to periodcially review your plan so that you ensure that your current needs are met, and to determine if updates need to be made.  If you’ve experienced life changes, or if you haven’t looked at your planning in several years, now is the time to review with an experienced and qualifit attorney.

If you have any questions about your estate plan needs, consult with a qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.