The key to power of attorney effectiveness is to have the legal document in place BEFORE you need it.  The answer to, “When Should I Get a Power of Attorney?” is right now, because once you’re incapacitated (and, actually, need the power of attorney) it’s too late.  You can’t sign a power of attorney if you’re incapacitated.

If you don’t have a power of attorney in place, your loved ones will have to petition the court to have someone appointed a conservator of your estate and of your person.  A conservator of your estate pays your bills, files your taxes, and manages and invests your assets.  A conservator of your person makes health care decisions on your behalf.

The conservatorship process is a loss of control, very expensive, time consuming, stressful, and public.  The court may appoint someone as conservator that you would not appoint for yourself.  Conservatorship is to be avoided.   You can avoid conservatorship by having a financial (i.e. general durable power of attorney) and a medical power of attorney in place.

In addition, if you have minor children, you need a stand-by guardian authorization that works like a power of attorney.  If you are incapacitated and cannot care for your children, the stand-by guardian will step into your shoes, making health care, general welfare, lifestyle, and educational decisions for your minor children.

Any guardian that you name in your will doesn’t have authority to act, without court intervention, because your will is only effective if you’re dead.  If you’re alive, but incapacitated, your will has no affect.

If your powers of attorney are more than three to five years old or if you don’t have them, consult with a qualified estate planning attorney to get them in place now.  The best time to get a power of attorney is before you need it.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

Some estate planning documents are effective as soon as you sign them; some are effective if you are incapacitated; and, some are only effective if you’re dead.  It can be confusing for you and your trusted helpers to know what’s what.  To provide some guidance, we’ve listed basic estate planning documents and described when they become effective.  All documents must be executed properly under California state law to be effective, any time.

• Will

Your will is only effective if you’re dead; so, your will becomes effective immediately upon your death.

• Health Care Power of Attorney

Your health care power of attorney is only valid if you cannot provide informed consent for medical treatment.  In other words, it’s only effective if you’re incapacitated.

• General Durable Power of Attorney/Financial Power of Attorney

These are two names for the same document; your financial power of attorney may be effective immediately upon signing; or, it may only be effective upon your disability if it is a “springing” power of attorney, meaning that it “springs” to life when you become incapacitated.

• Revocable Living Trust

Legally, your revocable living trust is effective immediately upon signing, with certain provisions such as the authority for disability and settlement trustees to act upon the occurrence of a specific event (i.e. your incapacity or death.)

In practicality, you must transfer assets into your trust for your trustees, including yourself, to have any power.

• Living Will

Your living will is only effective if you’re at the very end of life and there’s no coming back, meaning that you are in an irreversible coma or persistent vegetative state.

• HIPAA Release

Your HIPAA release is effective immediately upon signing.

• Organ Donation Authorization

Your organ donation authorization is only effective if you’re dead.

Consult with a qualified estate planning attorney if you have any questions or concerns about the effectiveness of your estate planning documents.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

If you haven’t updated your estate plan since you became a Californian, your estate plan may be useless.  Technically, if your estate planning documents were designed, drafted, and executed properly in one state, they will be legally valid in California.  However, as a practical matter, it’s often quite challenging to have out of state documents honored.  Moreover, if it’s been more than five years since you’ve last updated your estate plan, it’s likely they’re stale and virtually useless anyway.

Different States, Different Laws and Formalities

Powers of attorneys executed in one state are often refused in another state simply because they don’t look “right.”  Medical doctors and financial institutions don’t have time to have each foreign document validated, so they simply refuse them.

In addition, some states recognize civil union contracts and some do not.  In this case, even if your contract was legally valid in one state, it may not be valid in another.

Dying with an Out of State Will

If you die as a California resident with a will from another state, your loved ones will have to hire two probate attorneys, one in California and one in your other state.  Attorneys are licensed by state to ensure expertise and cannot give legal advice about the laws of a state in which they are not licensed.

Owning Property or Business in More than One State

If you own property and/or a business in more than one state in your individual name, probate is guaranteed in more than one state.  Consider owning your property in a revocable living trust to avoid involving the laws of a second or third state and make sure you have power of attorney documents for all states, as well.

Update Your Estate Plan When You Move

Consult with a qualified estate planning attorney in California; you’ll be glad you did.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

If your estate planning documents are more than five years old, they may be as stale as last week’s bread.  And, while your documents my still be legally valid, they may not work; just like last week’s bread is still bread, but it’s just not going to “work” for you.

Estate Planning Documents that Work

Estate planning documents work if they do what you want them to do.   Estate planning documents don’t work if they don’t do what you wanted.

Examples of Estate Planning Documents that Don’t Work

• Power of Attorney

Sometimes power of attorney documents are refused by financial institutions for being too old or stale.  Even though the legal document is valid, the date makes the institution uncomfortable and they’re afraid to honor it for liability reasons.

This is a document that doesn’t work.  Sure, you have the right to sue the institution to force them to honor the document, but who wants to do that?  That takes money, time, and causes a lot of stress.  And, in the meantime, you’re not able accomplish whatever you needed to accomplish with the power of attorney in the first place.

• Will

A will that hasn’t been updated within the last five years, may not work.  For example, Becky drafted her will years ago.  She provided that her assets were to be distributed to her uncles, Jake and Mack, or the survivor of them, at her death.

Jake died in 2009 and Mack is in a nursing home receiving governmental assistance.  Becky is killed in a car accident in 2011; she leaves 2 minor children, Emma and Samantha.

What happens now?  (It’s likely not what Becky would want.)

• Mack inherits all of Becky’s assets in her individual name, which disqualifies him from receiving governmental assistance.  This means Becky’s money will just pay for what the government would have paid for until it runs out; then, Mack will have to reapply.
• Becky’s minor children are disinherited.
• The court will decide who will raise Becky’s children and if no family member or friend steps forward, they will be placed into foster care.

Updating is Essential

Estate planning is never a “once and done.”  Updating your estate plan is essential to its success.  Consult with a qualified estate planning attorney to review and update your estate plan.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

If you have an elderly loved one, ensure that he is able to live comfortably and that all estate planning affairs are handled.  In other words, take the time to review your loved one’s needs to ensure that everything is being handled appropriately.  If you need help, meet with an elder law – estate planning attorney.

• Make sure that your loved one has a full estate plan in place. If your loved one has never planned, now is the time to do so.  If there is planning in place, but it’s more than 3 years old, encourage your loved one to update.

An emergency may occur when your loved one is least expecting it and you want to make sure that he is fully protected.  If your loved one loses capacity to execute estate planning documents, you will have to go to court for a conservatorship proceeding.

Talk with your loved one about his estate planning to ensure that all matters have been handled.  This can also serve to bring a greater sense of peace to your loved one as well as to you and your family members.

• Make sure that your loved one’s healthcare needs are met. Is your loved one receiving proper medical attention?  Does he or she need more medical help as life unfolds?  Discuss your loved one’s health along with your loved one and his doctor to better understand current and probable future needs.
• Understand your loved one’s long term care insurance. If your loved one has long term care insurance, it’s important to make sure that you understand all of the terms.  Now is the time to carefully review all information.
• Consider funeral planning. Taking the time to plan ahead for funerals or memorial services can eliminate much stress in the future and can ensure that your loved one’s wishes are fully respected.  It’s important to discuss this option with your loved one.

Carefully review your loved one’s needs as well as the current plans in place.  It is in both your best interests and those of your loved one to make sure that your loved one has proper planning so that he continues to be protected.  If you have any questions about your elderly loved one’s estate planning needs, consult with a qualified elder law – estate planning attorney.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

The best time to draw up a Health Care Power of Attorney or proxy is while you are attending to your estate plan. You should include this document in your estate plan so that it is ready when you need it.

Although many elements of your estate plan are put into place for the time that will eventually come when you are gone, a Health Care Power of Attorney is a safety net that can help if you are ever in a situation where you are incapacitated and unable to make your own health care decisions.

With all of the advancements in medical technology, doctors can keep people alive longer, and in some cases you can be kept alive for years, even if you are in an unconscious state. Many people do not want to be kept alive by artificial means if there is no chance of recovering and living a good quality of life, but if you do not have a Living Will or a health care agent that can make decisions for you, this could be exactly what happens.

The person you choose to be your health care agent will only be able to exercise their right to make decisions for you if your doctor determines that you cannot communicate your wishes concerning your own medical care. The person that you appoint as your health care agent should be someone that you trust to make the decisions that you would want; this is usually a close friend or a family member.

Once you know who it is that you want to be your health care agent you will want to talk with them to find out if they are willing to take on this responsibility. It is also important that you inform that person of what you would want concerning medical treatment; this is especially important when it comes to life sustaining treatment. Many people are hesitant to end life support if they are not absolutely sure that is what the person would want.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

When you start talking about incapacity planning, one of the first things you’ll hear about are POAs, or Powers of Attorney. But what do these documents do? And why do you need them in your estate plan?

There’s actually two types of POAs that a good estate plan should include:

The first is a Healthcare POA and this document ensures that a person you trust can legally speak on your behalf with regard to medical decisions and treatments. Coupled with a Living Will, this prevents long court battles over whether or not you would have wanted certain treatments, such as feeding tubes and respirators. Without these documents, it’s up to the family to decide and your family may not agree on this kind of life and death decision.

The second POA you’ll want to have is often referred to as a Durable Power of Attorney, but in truth, both of these documents are “durable.” This document is actually a Financial Power of Attorney – a legal instrument that grants authority to a person of your choosing to make financial decisions on your behalf. What makes it “durable” is that you say it is and this is an important distinction from a general Financial Power of Attorney. Durable means that the POA does not terminate if you become incapacitated and in this case, that’s exactly what you want.

Your Durable Financial Power of Attorney allows someone to pay your bills, write checks on your behalf and even enter into legal and financial transactions for you. This ensures that your financial affairs are well-tended, even if you’re not able to do it yourself.

For more information about Powers of Attorney and incapacity planning, call our office today.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.