You’ve, likely, heard the term, “power of attorney.”  Powers of attorney are legal documents used to authorize someone else to act on your behalf, in some sort of legal situation.  There are financial, health care, real estate, and business powers of attorney.

Financial powers of attorney are often called, “General Durable Power of Attorney.”  “General” means that the document covers a myriad of situations, mainly financial and personal business oriented. “Durable” means that the power of attorney is affective even if you become legally incapacitated.  (That’s the point.)  And, “Power of Attorney” means that you’re authorizing someone else (i.e. your agent) to act on your behalf in the listed situations and to sign your name.  They are, typically, effective immediately, unless they’re designed to be “springing.”  Springing powers of attorney become when you need them; when you’re legally incapacitated.

Health care powers of attorney might also be called “Advance Health Care Directives.”  Same thing.  So long as you are able to make your own health care decisions, you continue to do so.  But, if the time ever comes when you are unable to make those decisions yourself, your health care agent will be authorized to help you by providing informed consent.

Sometimes, business or real estate powers of attorney are used for a particular deal or real estate transactions.  They are specific to the situation outlined in the power of attorney.  For example, a businesswoman might be out of town when a deal is going to close, so she authorizes her business partner or another trusted individual to sign her name to the deal on her behalf.  In real estate, a spouse may be unavailable for a closing on a house; she’ll sign a power of attorney authorizing her spouse to sign the closing documents on her behalf.

If you don’t have a power of attorney for health care and finances, which was professionally drafted and is up-to-date (i.e. less than three to five years old), 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.

Everyone knows that an estate plan can ensure your chosen beneficiaries receive the right inheritance. But did you know there are other benefits too? Here’s five things a good estate plan can for you.

1. Protect Against Disability – No, your estate plan can’t prevent disability from striking but it can certainly ensure that you and your estate are protected if it happens. Using an Advanced Health Care Directive and General Durable Power of Attorney can ensure that your medical wishes are followed and that your finances are handled by someone you trust.
2. Provide Incentives to Your Heirs – With the right planning tools, you can do much more than leave your heirs a lump sum estate. Instead, you can create incentives for them to excel and achieve by offering inheritance bonuses for graduating college, getting married or other milestones. You can also set it up so that your heirs’ inheritance matches whatever income they earn each year. If they want a bigger inheritance, they must find a way to earn a better living.
3. Avoid Probate – Yes, with the right tools, your estate plan can help your heirs stay out of probate court. This makes the whole property distribution process much smoother and ensures that the details of your estate remain private.
4. Sponsor A Charity – There are certain types of trusts that allow you to structure assets so that they benefit both your heirs and your favorite charity.  Donating this way also provides significant tax breaks to all parties involved.
5. Protect Dsabled Dependents – A Special Needs Trust can ensure that your disabled loved one continues to qualify for important public benefit programs while still enjoying the benefits of his or her inheritance.

Of course, that’s not all an estate plan can do, but it’s a good start. To learn more about how a good estate plan can make your life easier, contact an experienced and qualified estate planning attorney.

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

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.

Incapacity planning is an estate planning need that is often overlooked.  Many people assume that they will never have a medical emergency, so they decide not to plan ahead.  Take a look at the following information, to better understand incapacity planning.  If you have any questions, or if you’d like to discuss your planning options, contact an experienced and qualified estate planning attorney.

Staying in Control with Incapacity Planning

Incapacity planning makes it possible for you to have control over your affairs, even when you’re unable to communicate your needs or make decisions. With a written and legally valid plan in place, you can authorize others to offer assistance, so that there is no court interference, which is a total loss of control.

Execute Powers of Attorney

You may choose to create a financial power of attorney and medical power of attorney, known in California as an Advance Health Care Directive.  These documents allow you to appoint agents who will be responsible for assisting you, during any period of incapacity.  This is not a place to cut corners.  Avoid the temptation to download a boilerplate power of attorney you may find on the Internet.  Many of these documents are inad

• Financial Power of Attorney:  This means that your finances will remain order, so that your bills are paid because your agent has access to your money and the authority to act on your behalf.
• Medical Power of Attorney (Advance Health Care Directive):  Your medical (or health care) power of attorney authorizes a trusted helper to assist you, by making important medical decisions regarding your care.

Avoid Conservatorship

Without the right plan in place, you will have no control; and, neither does your family!  That’s right; your own family won’t be able to help you!  They will have to go to court to have you deemed incapacitated and have a conservator appointed.  It may not be whom you would want; it may even be a stranger.

If you don’t have up-to-date powers of attorney in place, 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.

A power of attorney, or POA, is a legal document that has been around in varying forms for centuries. The concept, or purpose, behind a power of attorney is the ability to give another person the legal authority to act on your behalf. The extent and the duration of the authority depends on the type of POA that you execute. Although POAs are widely used by people of all ages, they are particularly popular with the elderly. Unfortunately, they are also widely used by people who want to take advantage of the elderly. If someone has suggested that you execute a power of attorney, be sure that you understand what you are signing first. Consulting with an experienced and qualified estate planning attorney is the best bet; however, there are some basics that can help you in the meantime.

• State laws govern the formation and interpretation of a POA. Although there are similarities, make sure that you understand the laws in your specific state before signing anything.
• Do not confuse a POA with a healthcare power of attorney, living will or advance health care directive. The name may vary from one state to another, but these documents are intended to give someone the power to make healthcare related decisions in the event of your incapacity only. They are very specialized documents that typically follow a state approved form which includes specific language. They are also frequently registered with the state.
• Traditional POAs come in two general forms — durable and non-durable. A non-durable POA will terminate upon your incapacity. A durable POA survives your incapacity.
• All POAs terminate upon your death.
• You may rescind a POA at any time.
• You may make a POA as specific as you wish. For example, you could execute a POA that only gives someone the authority to complete the sale of your car.
• You can also make a POA very broad. You can give someone the authority to transact any legal business on your behalf, for instance. Be very careful when you grant a broad POA as you are essentially giving the person access to most of your estate assets and financial affairs.

Powers of attorney are very useful and powerful documents that can be used to the advantage of the person creating the POA.  Unfortunately, it can also be misused if it gets into the hands of the wrong persons.  When considering the creation of a POA, one should avoid the boilerplate forms which can be found on the internet and some self-help books.  Like other estate planning documents, they should be carefully drafted and executed.  The best way to assure you get a power of attorney drafted to meet your needs and goals is to work closely with an experienced and qualified estate pl

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

If you become incapacitated at any point in your life, who will manage your finances? You may think that you know the answer to that questions, but from a legal perspective you may not.

Incapacity can happen slowly as part of the natural aging process or can happen in a moment as the result of the tragic accident. Regardless of how you become incapacitated, someone will have to manage your finances. If you are married at the time you become incapacitated, your spouse may have access to some of your assets, but if you are under the assumption that your spouse will have automatic access to all your assets simply by virtue of being your spouse, you may be incorrect. Anyone other than your spouse will likely not have access to anything without seeking court permission.

The result of not planning ahead can mean that your family or loved ones may not have access to assets that are needed to pay bills or maintain the household. Important decisions that need to be made regarding your finances may also be on hold until a court decides who will be given permission to manage your finances.

The good news is that with just a little planning you can easily avoid a situation where you have no control over who manages your money. Titling property jointly and executing a valid and comprehensive durable power of attorney may be options. You also may wish to discuss a cr eating a revocable trust with an experienced and qualified estate planning attorney as well which can allow you to appoint yourself as the trustee with a successor trustee also being named in the event of your incapacity.

With the ever increasing longevity trends in our society, there is an increasing possibility that we may become mentally incapacitated before we expire.  Diseases such as dementia and Alzheimers increase with age.  The time to address these issues is before s

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.

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.