Estate Planning Practice Blog

Who Makes End of Life Decisions When There is No Medical Directive?

Say someone is no longer able to make medical decisions concerning their end of life care. What happens now?

First, the doctors and family will look to see if the patient has a valid Advance Health Care Directive.

Say the patient never prepared an Advance Health Care Directive. What happens now?

Second, state law may dictate who has priority of making medical decisions. Not all states have such laws defining the hierarchy of who can make medical decisions for those unable to. California doesn't have any laws on the books regarding this.

California does have Probate Code Section 3200 et. seq., which offers a court procedure to petition the court to assist with the decision making process in the absence of an Advance Health Care Directive.  There is also two other court avenues that may be taken -- one is to obtain a conservatorship over the person or petition the court for substituted judgment.

I can already tell you that without explaining the nuances of any of these procedures, they are costly in terms of court filing fees, legal fees and have a high emotional cost while waiting for a judge to decide on the fate of your loved one.

Third, some medical institutions also have manuals or policies dictating who should make medical decisions in the absence of an Advance Health Care Directive. Check with the hospital where your loved one is at for end of life care to see if they have such procedures in place.

All in all, not having an Advance Health Care Directive stating your preferences for end of life wishes may cause your loved ones untold agony and discord especially if your loved ones don't agree.

Useful Durable Power of Attorney Provision.

Most standard Durable Powers of Attorney prepared should have an enumerated power for someone to act on your behalf regarding your right to receive proceeds from a trust, estate or other related beneficiary transaction. 

How this works:

Let's say you are disabled, incapacitated or recovering from an illness and you are now the beneficiary for someone else's trust or estate with issues requiring your attention.

For example, your interest as a beneficiary in someone else's trust or estate is being compromised or is not handled properly. You can have your attorney-in-fact under your Durable Power of Attorney handle all matters involving your interest as a beneficiary to include but not limited to receiving funds, requesting funds and handling lawsuits on this matter.

Thus, a Durable Power of Attorney is a very powerful document. It's something that everyone should have in place. This power is one of the many powers enumerated in a Durable Power of Attorney. Remember, your Durable Power of Attorney can be effective immediately or upon your incapacity as determined by a court or two licensed medical doctors.

This is what the enumerated power should include:

1.9. Estate, Trust, or Other Beneficiary Transactions. I give my attorneys in fact all of the powers listed below in this paragraph so that my attorney in facts may act for me in all matters that affect a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or other fund from which I am, may become, or claim to be entitled, as a beneficiary, to a share or payment, whether such matters deal with property located in this state or elsewhere. The powers described in this paragraph do not include the power to create, modify, or revoke trusts.

(a) Payments. Accept, reject, disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or consent to a reduction in or modification of a share in or payment from the fund.

 
(b) Claims. Demand or obtain by litigation or otherwise money or other thing of value to which I am, may become, or claim to be entitled by reason of the fund.

 
(c) Participation in Proceedings. Initiate, participate in, and oppose litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting my interest.

 
(d) Removal of Fiduciary. Initiate, participate in, and oppose litigation to remove, substitute, or surcharge a fiduciary.

 
(e) Investments and Disbursements. Conserve, invest, disburse, and use anything received for an authorized purpose.

 
(f) Transfer to Revocable Trust. Transfer an interest of mine in real property, stocks, bonds, accounts with financial institutions, insurance, and other property to the trustee of a revocable trust created by me as settlor.

 
(g) Contingent Interests. Convey or release any contingent or expectant interests in property, including marital property rights, and any rights of survivorship incident to joint tenancy or tenancy by the entirety.

 
(h) Probate Code Section 13502 or 13503 Election. Make any election or election and agreement referred to in California Probate Code Section 13502 or 13503.

More on Elder Abuse. A Useful Primer on Financial Elder Abuse.

The California Bankers Association is the largest banking trade association with a very informative website on issues involving banking. One issue that is prevalent day in and day out in the banking industry is financial elder abuse.

Banks and their employees are often in touch with their elderly clients more than any of us. Simply because people bank often. Bankers and their staff see clients all the time and may be in a good position to prevent elder abuse.

The Calbankers website has a very nice primer and training materials on financial elder abuse.  Also available on the site is a sample fraud alert form that bankers can use to help their elderly clients spot financial elder abuse. It is a form that bankers ask clients to complete regarding their banking transaction if the banker suspects that something is amiss.

See also my post yesterday on California's elder abuse statutes for more information.

Elder Abuse

California has elder abuse statutes to protect the elderly from a myriad of physical, financial, emotional and other types of abusive situations.

In California, an elder is considered anyone age 65 or older.

This group of statutes is commonly known as Elder And Dependent Adult Civil Protection Act.  To read the statutes directly, click here and scroll to Chapter 11.

One of the key things when approaching the topic of elder abuse is prevention.

It can happen to the best of us.

Here are some things to consider and have in place for yourself and your loved ones to prevent elder abuse from occurring:

1. Advance Health Care Directive – provides for care in accordance to your wishes and nominates conservator in case one is needed for your care.
2. Revocable Trust – you can choose your successor trustee to handle your assets privately, save  money on probate fees and costs, save an enormous amount of time and a good trust will contain a no contest clause.
   
3. Durable Power of Attorney – you can choose who you want to manage your financial affairs if you are alive but unable to do so.
   
4. Will – functions as a back up to your Revocable Trust and should contain a no contest clause.
5. And most importantly, have someone on your side who cares about you. This is often the most critical component as it may require to have a loved one always on the look out for your best interests.

Talk to your estate planning attorney for more information.

Reading Wills?

Remember those old movies?

You know, where they read a Will outloud after the demise of a very rich uncle with the greedy heirs sitting with a bated breath to learn of their newly acquired fortune.

This is rarely, if ever, done in real life according to an informal survey of estate planning attorneys across the country from an email list I belong to.

Typically when someone passes away, their original Will is lodged with the court. Copies of the Will may be sent to the heirs or beneficiaries depending on the attorney handling the estate. If the Will has been lodged with the court, you can also inspect the Will at the court.

If you ever have questions about someone's Will, please seek the advice of counsel. You can start with the attorney who prepared the Will if you know who he or she is. If the question you have does not pertain to a matter involving attorney-client privilege, the attorney may answer. If not, see the advice of your own lawyer if you have questions about a Will or wish to contest it.

Back to the movies though ... in in all seriousness, folks, reading a Will in an attorney's office would be two things: 1) boring and 2) expensive use of an attorney's time.

Imagine reading this paragraph outloud... it came from a Will that I prepared this morning.

"4.11. Payments to Legally Incapacitated Persons. If at any time any beneficiary under this will is a minor or it appears to the executor that any beneficiary is incapacitated, incompetent, or for any other reason not able to receive payments or make intelligent or responsible use of the payments, then the executor, in lieu of making direct payments to the beneficiary, may make payments to the beneficiary's conservator or guardian; to the beneficiary's custodian under the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act of any state; to the beneficiary's custodian under the California Uniform Transfers to Minors Act until the beneficiary reaches the age of twenty-five (25); to one or more suitable persons, as the executor deems proper, such as a relative or a person residing with the beneficiary, to be used for the benefit of the beneficiary; to any other person, firm, or agency for services rendered or to be rendered for the beneficiary's assistance or benefit; or to accounts in the beneficiary's name with financial institutions. If there is no custodian then-serving or nominated to serve by me for a beneficiary, the personal representative or executor, as the case may be, shall designate the custodian. The receipt of payments by any of the foregoing shall constitute a sufficient acquittance of the executor for all purposes."

Happy Holidays!

"Once again we find ourselves enmeshed in the Holiday Season, that very special time of year when we join with our loved ones in sharing centuries-old traditions such as trying to find a parking space at the mall. We traditionally do this in my family by driving around the parking lot until we see a shopper emerge from the mall, then we follow her, in very much the same spirit as the Three Wise Men, who 2,000 years ago followed a star, week after week, until it led them to a parking space."

Dave Barry (who has a blog too)

Cancer Legal Research Center.

Jennifer Sawday is pleased to announce that she is a pro bono panel attorney with Cancer Legal Research Center at Loyola Law School. Here's a snippet from their website:

"The Cancer Legal Resource Center (CLRC) is a community-based joint program of the Disability Rights Legal Center and Loyola Law School. The CLRC provides free and confidential information and resources on cancer-related legal issues to people with cancer, their families, friends, employers, health care professionals, and others coping with cancer.

A cancer diagnosis can carry with it a variety of potential legal issues, including insurance coverage, employment discrimination, health care, child custody, and estate planning. These legal issues can cause people unnecessary worry, confusion, and stress, and can be overwhelming. When these legal issues are not addressed, people may find themselves surviving the disease, only to find that they have lost their homes, jobs, insurance, or families."

I was asked to join the panel in September. It took me a while to decide whether I wanted to be a part of the panel. It was a hard decision for two reasons.

One, I am not that comfortable with health matters (i.e., not good at the sight of blood) and two, my mother lost her life to cancer. 

I got over my aversion to health matters (for a lack of a better term) rather recently after helping two other individuals in my practice who were diagnosed with cancer. One gentleman was end-stage and the other was still fighting his diagnosis. It mattered more to be able to help them with their legal needs and, in that perspective, I quickly lost my aversion to the health matter issue.

I also decided that it is easy for me to provide legal advice and assistance in areas involving estate planning, durable powers of attorney, advance health care directives, family law and other related issues often facing individuals battling cancer.

So, I signed up and now I am proud to be a part of the panel.

Have a Probate Matter?

Has someone you loved passed away recently? Are you concerned that you might have to open probate for a loved one's estate?

Despite what you may have heard about probate, we try to make the process as easy as possible for you.

Tredway, Lumsdaine & Doyle has three attorneys who handle probate matters as a regular part of their practice. The firm also has two exceptionally qualified probate paralegals that assist with every probate case. Together, this team works with you to handle your probate matters with as much efficiency and ease of administration as possible given the circumstances.

Tredway, Lumsdaine & Doyle is also very experienced in litigation matters involving probate cases.  Fee arrangements for probate litigation matters are usually on retainer and separate from the statutory fee arrangements for a probate matter not involving litigation.

One thing is certain, if you have a probate matter, please consult us first. We can explain the process to you, help you navigate the court system with our committed attorneys and paralegals.  Having the Tredway team on your side for probate simplifies the process more than just working with a solo attorney.

Initial consultations involving probate matters are at no charge. Please call any of the numbers on the left or email attorneys Jennifer or Monica for more information.

Types of Cases Heard in Probate Court.

In California, the probate court is a court of general jurisdiction. What is confusing to many people is that the probate court hears more than just traditional legal matters where someone has died with or without a Will.

Thus, California's probate courts handle proceedings involving:

   

• Decedents estates (the traditional role it is most known for)    
• Trust proceedings    
• Guardianship proceedings    
• Conservatorship proceedings    
• Minors compromises

If you are served with a summons or legal papers involving California's probate court, please do not assume that the papers involve someone's estate and nothing further is required from you. If a summons is attached to the papers, it means you have been sued in some capacity.

You should seek the advice of legal counsel to review the papers (sometimes called a Petition) and determine if you need to file a response (which would be Objections) to protect your rights in the lawsuit.

Estate Planning Process Explained.

I want to tell you how easy it is to establish your estate plan.

 1. Contact Tredway, Lumsdaine & Doyle to schedule your complimentary estate planning consultation with one of our estate planning attorneys. You will be sent a questionnaire either by mail or email to complete and bring to your first meeting.

 3. At our first meeting, we discuss your estate planning objectives, review your questionnaire and, from there, we will quote you a fee to begin work. If you wish to proceed, we will ask you to sign a fee agreement requiring one half payment before beginning. If you are not comfortable or need more time to decide, the meeting will end and there is no charge for your consultation.

 4. If we proceed, we prepare a draft of your estate plan for your review. Once you approve of the drafts, we will schedule a meeting to review the documents at length and sign them. You will take home the originals and copies of your executed estate plan for safekeeping. We will record any trust transfer deeds prepared for you. Now you can breathe easy knowing that your estate plan is fully executed and in place to protect your loved ones.

Remember, an estate plan for most individuals and families include the following documents: a Will, Revocable Living Trust, Durable Power of Attorney and Advance Health Care Directives prepared in accordance to your wishes.