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Wills, Trusts, Durable Powers of Attorney, Advance Health Care Directives, Conservatorships, Elder Abuse

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Wills, Trusts, Durable Powers of Attorney, Advance Health Care Directives, Conservatorships, Elder Abuse

Written by Sean Culligan

Not legal advice and laws may change.

Wills

What is a Will?

A will is a testamentary document that is used to state an individual’s last wishes upon their death.  A will nominates an executor.  An executor is the person or persons named in the will who will responsible for administering the decedent’s estate.  A will designates beneficiaries of the estate. A will can also be used to nominate guardians for minor children.

What are the requirements for creating a Will?

For a will to be valid under California law, the will must be signed by the testator and witnessed by two disinterested witnesses.  The testator is the individual creating the will.  A disinterested witness must not be named in the will as either a beneficiary or executor

When does a will become effective?

A will becomes effective on the death of the testator.  A will is not used during the testator’s life.

If you have a will, does your estate avoid probate?

Probate is a court proceeding used to administer a decedent’s estate pursuant to the terms of the will and to ensure the decedent’s creditors are paid.  If you have a will, it is your will that is probated.  If you do not have a will, your estate will still go through probate.

How do you avoid a probate?

In California there are four ways to avoid probate:

  1. If your estate is less than $150,000.00 then your estate will not go through probate.
  2. If you have bank accounts or assets such as an IRA or 401k and those bank accounts or assets have designated beneficiaries then those accounts or assets get distributed pursuant to the beneficiary designations, regardless of the value, i.e. more than $150,000.00 or less than $150,000.00.
  3. If real property is titled in a joint tenancy with the right of survivorship then upon death the real property passes to the surviving joint tenant.
  4. Revocable Trust.

Revocable Trust

What is a Revocable Trust?

A revocable trust, commonly called a “living trust” is an estate-planning tool used for avoiding the costs and hassles of probate, preserving privacy and, preparing your estate for distribution to the designated beneficiaries

What is the function of a Revocable Trus?

In addition to avoiding the costs and hassles of probate, preserving privacy and preparing your estate for distribution to the designated beneficiaries, a trust designates the settlor or settlors.  A settlor is the individual creating the trust.

A trust designates a trustee.  A trustee is the person or persons named in the trust responsible for administering the trust estate during life, upon a finding of the settlor or settlors’ incapacity, or upon death of the settlor or settlors.

A trust can also create other trusts such as a special needs trust

What are the requirements for creating a trust?

For a trust to be valid under California law, the trust must be in writing, designate beneficiaries, and contain a res.  A res is property.  Property can be either personal property or assets such as real property, money, stocks, bonds, etc.

Unlike a will, a trust does not have to be witnessed by two disinterested witnesses

When does a trust become effective?

A trust becomes effective once it is signed by the settlor or settlors.

How does a trust help your estate avoid probate?

A trust avoids probate because when the trust is created, all assets owned by the settlor or settlors are re-titled in the name of the trust. Ex.  John Doe and Jane Doe, Trustees of the Doe Family Revocable Trust.  When assets are titled in the name of a trust, the trust owns the assets. The assets are then distributed pursuant to the terms of a trust, thus, dispensing with probate.

When a testator creates a will, all assets owned by the testator remain in their name, Ex.  John Doe and Jane Doe.  A probate is required in order to take the testator’s name off title of his or her assets and distribute those assets to the beneficiaries of the estate

When a trust is created does the settlor lose management and control over the trust property?

No.  The settlor is the individual or individuals creating the trust.  The settlor or settlors are also the trustees.  Thus, the settlor/trustee maintains ownership and control over all trust assets until the settlor/trustee is deemed incapacitated or passes away.

Durable Power of Attorney For Finances

What is a Durable Power of Attorney?

A power of attorney is a legal document that gives someone the authority to act on your behalf.

The person who gives the authority is called the principal.  The person who is given authority is called the agent or the attorney-in-fact.

There are two types of power of attorney:

  1. General Power of Attorney.

A General Power of Attorney gives the designated agent the authority to act in a broad range of matters such as buying and selling real estate and personal property, managing your banking and investments, operating a business, handling taxes and lawsuits, and applying for government benefits.

  1. Limited Power of Attorney. A limited Power of Attorney gives the designated agent authority to act only in a limited situation, which is specified in the document.

What Makes a Power of Attorney “Durable”?

The word “durable” means that the power of attorney continues to be effective after the principal becomes mentally incompetent.  Being mentally incompetent means a person lacks the mental ability to make informed decisions or is incapable of communicating those decisions.  Incapacity can be a result of mental illness, dementia, stroke, or brain injury.

When Does a Durable Power of Attorney Become Effective?

A durable power of attorney can either become effective as soon as it is properly signed (effective immediately).  To become effective immediately, the document will include language such as: “This power of attorney shall not be affected by my subsequent disability, incapacity, or incompetence

A durable power of attorney can become effective when the principal becomes mentally incapacitated (springing durable power of attorney).  To make the durable power of attorney only effective in the event of mental incapacity, it will include language such as: “This power of attorney shall become effective upon the date of my disability, incapacity, or incompetence.”

Advance Health Care Directives

What is an Advance Health Care Directive?

An advance healthcare directive, also known as living will, is a legal document in which a person specifies what actions should be taken for their health if he/she is no longer able to make medical decisions for themselves because of illness or incapacity.

Much like a durable power of attorney for finances, an advance health care directive can become effective either immediately or upon a finding that the individual is no longer able to make health care decisions

The person creating the document is call the principalThe person making the health care decisions on the principal’s behalf is called the health care proxy or health care agent.

What is the function of an advance health care directive?

Specifies a person’s preferences regarding:

  1. Disposition of remains.
  2. Donation of organs.
  3. Preference for religious ceremony.
  4. Whether the individual would want life sustaining treatment if the individual is in an irreversible coma or if he/she is terminally ill and the burdens of continuing medical treatment outweigh the benefits.

Conservatorships

What is a conservatorship?

A conservatorship is a court proceeding wherein a judge appoints a responsible person or organization to care for another adult who lacks the capacity to make medical or financial decisions.  The responsible person or organization is called the “conservator”.  The adult who cannot care for himself/herself or manage his or her own finances is called the “conservatee”.

When is a conservatorship required?

A conservatorship is required when an individual is unable to care take care for their person and/or finances.

An individual is unable to care for their person when he/she cannot bathe, dress, feed himself/herself, manage their overall health, and administer medications.

An individual is unable to manage his/her finances when he/she cannot complete certain tasks such as enter into financial transactions or the individual is highly susceptible to fraud and/or undue influence.

Is a conservatorship an ongoing process?

A conservatorship remains in place until the conservatee regains capacity or passes away.

What happens when an individual is conserved?

When an individual is conserved, he/she may lose certain civil liberties such as the right to vote.  The conservator makes all decisions on behalf of the conservatee and manages the conservatee’s finances.  The conservator also has the authority to fix the conservatee’s residence.  This may result in the conservatee being removed from his/her home and placed in an assisted living facility or skilled nursing facility

Is a conservatorship a costly proceeding?

A conservatorship is a costly proceeding.  A lawyer is needed to assist the proposed conservator (also called “Petitioner”) with completing the conservatorship petition.  A lawyer is appointed by the court to represent the proposed conservatee.  A court investigator is appointed by the court in order to conduct a neutral investigation in order to determine if a conservatorship is warranted

In Solano County the filing fee with the court for the conservatorship petition is $465.00.  In Solano County the court investigator’s fee is $500.00.  Most lawyers charge between $5,000.00 to $7,500.00 just to start the conservatorship process.  These costs and fees are paid with the proposed conservatee’s funds

How do you avoid a conservatorship?

If you want to avoid a conservatorship, you must have an estate plan in place.  An estate plan is a comprehensive set of legal documents that convey an individual’s preferences upon death or incapacity.

An estate plan consists of a Will, Revocable Trust, Durable Power of Attorney, and Advance Health Care Directive.

Elder Abuse

What is Elder Abuse?

California Welfare and Institutions Code section 15600 protects elders (anyone 65 year of age or older) and dependent adults from many types of physical abuse and neglect.  “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

Plus, it must be shown that the person or entity alleged to have committed financial elder abuse knew or should have known that the conduct at issue was likely to have been harmful to the elder or dependent adult.

  • The taking of the property of an elder is not restricted to physically removing property from the elder’s possession.  The law defines taking to include depriving an elder or dependent adult “of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

Signs to look for with elder abuse:

Physical Neglect and Abuse

An individual in charge of caring for an elder and neglects that individual by failing to feed, bathe, dress, administer medications engages in physical harm and abuse.

Financial Elder Abuse

Financial elder abuse comes in many forms.