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.

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.

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.

While most people hate to think about illness, disability and death, it is a part of life.  When you are least expecting it, you or a loved on can become seriously ill.  It is best to plan for these scenarios ahead of time.   Consider the following:

• Who will take care of me when I become seriously ill?
• How will I be able to take care of my finances and pay my bills?
• Who will care for my children?
• Will I be able to afford an illness?
• Do I want to be on life support?
• Who will help me communicate with my doctor?

These are all questions that you should take the time to consider.  If you do not have a solid estate plan in place, the results may not be what you expect or want.

Health care directives are powerful tools that allow you to plan for future disability or death.  This will enable your wishes to be followed.

• Advance Health Care Directive – An advance health care directive (AHCD) helps to outline what your wishes are during serious terminal illness.  In your AHCD, you will include your wishes for life support. This means you have the option to choose if you would like to die peacefully or be hooked up to machines.  An AHCD also enables you to choose an agent who will help make important medical decisions when you are unable to do so yourself.  This person will follow your wishes.  It is important to choose someone who is responsible, trustworthy, and loving.
• Financial power of attorney – This allows you to select an agent who will help to handle your finances if you are unable to.  This includes paying bills, filing tax returns and depositing and withdrawing your money.  This person should be responsible, trustworthy, and a good communicator.
• Revocable Living Trust - For persons with more than a very modest estate, a revocable living trust is general a superior way to ensure that your financial affairs are effectively managed in the event of your incapacity.
• HIPAA – A HIPAA release makes it possible for a health care professional to communicate with your health care provider.  This helps to keep your information and records private unless authorization is given.  HIPAA is the abbreviation for a federal law that imposes privacy limits on a person’s medical information.

With the help of a qualified, experienced estate planning and elder care attorney, the above tools can be put into place to help plan your future in case of serious illness or death.

If you have questions about health care directives, unexpected disability, or estate planning in general, consult with a qualified, experienced estate planning and elder care attorney.

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

If you’re considering including incapacity planning in your estate plan (and you definitely should be), it’s important that you understand the use of the different available legal documents.  A comprehensive estate plan will allow you to have the best plan in place so that your needs are always met.

Did you know…?

• An advance health care directive is a document that allows you to spell out your wishes regarding end of life treatments and procedures.
• Many people use their advance health care directive to outline their wishes regarding the use of life support.
• Your advance health care directive may be used to discuss many other treatments and procedures, including the following: surgery, diagnostic tests, and CPR.
• With the use of an advance health care directive, you’re able to appoint an agent who will be responsible for making medical decisions on your behalf, if you’re ever unable to do so yourself.
• Without an advance health care directive, your loved ones may need to go to court in order to get the legal approval needed to help make decisions on your behalf.  This is called a “conservatorship.”
• Your hand picked healthcare agent will have many responsibilities, including the following: discussing your needs with medical professionals, choosing facilities and staff members, and making decisions regarding the use of different treatments or tests.
• Your designated health care agent is unable to make decisions that go against the wishes that you’ve stated in your advance health care directive.
• You should create an advance health care directive now regardless of your other planning goals.  This will allow you to always have an emergency plan in place.  Without a plan, you’re putting yourself at risk that someone that you would not want is appointed to make health care decisions for you and that decisions you would not want are made.

Take the time to discuss incapacity planning for medical issues with your experienced, qualified estate planning and elder care attorney.  You never know when you may be unable to make your own decisions.  If you have any questions, or if you’d like to begin your incapacity planning, consult with a qualified, experienced estate planning attorney.

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

A “conservator of the person” is the individual who makes general welfare, health care, educational, and life-style decisions for an incapacitated adult.  An adult may become incapacitated due to dementia, disease, or disorder.

Examples of decisions would be where someone lives and what medical treatment he or she receives.

In contrast, a “conservator of the estate” is the person who is in charge of an incapacitated person’s finances; managing, investing, and distributing assets on behalf of that incapacitated individual.

Examples of decisions would be how assets are invested and what expenses are authorized.

The conservator of the person and the conservator of the estate may or may not be the same person.  Whether the same or different people are appointed is up to the person who does comprehensive estate planning.  In the alternative, there is no estate plan in place, the court will appoint the conservator as it deems appropriate.

To maintain control, choose who helps you if you need it, and keep the court out of your business, you must do disability planning.

It’s important for each adult to have a general durable (i.e. financial) power of attorney, health care power of attorney, advance health care directive, and HIPAA release.

In addition, many adults also benefit from having a fully funded revocable living trust. A comprehensive living trust-based estate plan may, in fact, negate the need for a conservator of the estate and conservator of the person.

Parents of minor children also must have a stand-by guardian designations to name guardians for their children in case they are alive but are incapacitated and unable to care for them.  Guardians named in their wills are also imperative.

The will only applies if the parent is dead; the stand-by guardian designation applies if the parent is alive, but is incapacitated.

To make sure you have full incapacity planning in place for yourself and to choose who is your conservator, if needed, and also the guardian of your minor child’s person and guardian of your minor child’s estate, consult with an experienced, qualified estate planning attorney.

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

It’s important to take time to handle your estate planning affairs so that you’re protected throughout your lifetime as well as after you die.  Many people don’t take the time to think about their individual estate planning needs.  Take a look at the information below to better understand your own planning needs.  If you have any questions about the estate planning process, meet with an estate planning attorney.

• Have you taken the time to name a guardian for your children?  If you have minor children, you want to make sure that they’re always protected.  With the use of a will, you’re able to appoint a guardian for the care of your minor children.  If you have children and are just beginning to plan your estate, a will is a must.  If you don’t handle this important estate planning need, your children may be cared for a guardian who is not your choice.
• Have you considered incapacity planning?  You never know when you may become incapacitated or, otherwise, disabled.  It’s important to have a plan in place so that your medical wishes are respected and you receive proper treatment.  With the use of an advance health care directive, you can outline your end of life medical wishes regarding the use of certain treatment options.  In your directive, you can also appoint an agent who will be responsible for helping to make important medical decisions on your behalf, if you’re ever unable to make these decisions yourself.
• Have you considered your financial planning needs in case of incapacity?  If you become incapacitated, you won’t be able to make your own financial decisions.  With the use of a financial power of attorney, you can appoint an agent who will be responsible for handling your financial obligations during your time of need.  This will ensure that all of your financial affairs are in order.
• Will your estate plan be comprehensive enough?  A well constructed comprehensive estate plan can accomplish these goals and properly incorporate the above documents.  For many persons, the addition of a revocable living trust to their plans will help them avoid unnecessary court proceedings in the event of disability or death and to incorporate tax-saving provisions.

If you have any questions about the above estate planning needs, or if you’d like to start your estate planning, consult with a qualified, experienced estate planning attorney.

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

Advance health care directives are the medical portion of an estate plan.  They typically include the designation of a health care agent, a statement of wishes concerning end of life care (commonly called a living will), instructions concerning organ donation and provisions for the disposition of remains.  You can also add any other medical instructions you so desire.

The concept of the directive is that you make a decision now to take affect sometime in the future if a certain situation occurs.

For example, you appoint a health care agent to make health care decisions for you at some time in the future, if you can’t make those decisions yourself.  Your health care agent would be able to choose your doctor, consent to medical treatment such as a particular medicine or surgery, or okay physical therapy.

While it’s generally better to let your medical personnel and health care agent make good decisions once they assess the specific situation, you can make known your medical decision wishes and instructions in advance.  The living will portion of a directive is a good place to set forth those wishes.

If you don’t want to be hooked up to life support machines or be subjected to other medical heroics when there is no hope of recovery, you can make that medical decision in writing in advance.

Be sure that you also have a HIPAA release in place.  A signed HIPAA release meets the requirements of federal medical privacy law commonly called HIPAA and permits medical personnel to release your medical records and information to and communicate with your health care agent.

If you have advance health care directive, be sure that your family and other loved ones know about them and where to find them.  Using an online documents storage service such as DocuBank (www.docubank.com) can ensures your advanced medical directives will be available when you need them.

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