Estate Planning Basics
Advanced Health Care Directives are for All Ages
Estate planning is not for the dead or dying – it's for the living. Its purpose is for an individual to express his or her wishes so that they can be carried out when that individual is unable to do so. Too many people fail to place value in preparation. Too many people must think they are invincible and that accidents "don't happen to people like them." These are such obvious fallacies, yet they are rampant in our society. If they weren't – everyone would have an estate plan. This article is for the 20-somethings and 30-somethings and 40 plus-somethings who believe that they're "too young" to plan. It's for the invincibles.
The Advanced Health Care Directive is a plan necessary for individuals of all ages. It is the document where one dictates the person in his or her life they trust the most to make decisions relative to his or her health care. In the late 1990's and early 2000's, the Terri Schiavo case was well-known. Ms. Schiavo was in a persistent vegetative state for 15 years. Her husband wanted to remove her feeding tubes that were keeping her alive. Her parents wanted to leave it in place. Ms. Schiavo did not have an Advanced Health Care Directive. She left no indication of whose medical opinion she valued most. She left no instruction about what she wanted. If she had an Advanced Health Care Directive, she likely would have identified either her husband or her parents as the decision-maker. There would have been no need for a 15 year battle. Ms. Schiavo was only 26 when she took ill.
In addition to designating a person to carry out one's wishes, an Advanced Health Care Directive allows an individual to articulate his or her specific desires. For example, it allows each individual to express whether he or she wants to be medically treated for an illness contracted while in a coma. It also allows individuals to decide whether it is more important for that person to be kept pain-free or life-support free when given the choice.
The Advanced Health Care Directive can be written to only take effect when an individual lacks capacity. Capacity is typically decided by either a court order or doctor's declaration. It can also be written to take effect immediately. Even a person who has capacity may not want the pressures of making important health care decisions when he or she doesn't feel strong and clear-headed. Designating a trusted person can lighten the burden of an painful, uncomfortable experience.
The time to prepare an Advanced Health Care Directive is as soon as possible. Planning is not about expecting death. It's about the living.
Quick Guide to Your Estate Planning Needs
Everyone needs to play for what might happen in the future. It can often be overwhelming or seem unnecessary. This quick guide briefly breaks down what you need and why.
Revocable Living Trust
Who Needs this? If you own a home, or have assets valued greater than $150,000.00, you should have a revocable living trust.
Why is it important? When you die in California, your property must pass through probate even if you have a will. This is expensive, and it gives the court the power to make decisions for you. A Trust acts similar to a business entity and the creator, known as the "Trustor" gets to dictate those rules. It functions similar to a will and is often used to designate beneficiaries. However, it also functions to protect your assets if you become incapacitated.
This article highlights the estate planning failure of actor, James Gandolfini: http://trialandheirs.com/blog/celebrities/james-gandolfinis-estate-planning-mess
Who needs this? Everyone. But especially people with children.
When a Trust is created, the will is usually a "pour over" will. It is a basic document that essentially defers all decisions to the trust. It's still required by the courts and is looked to if the Trust is found invalid for any reason. If there is no Trust, the will determines an estate's asset division and beneficiaries. The will also has the unique ability to dictate who gets custody of your children if you die.
Power of Attorney
Who needs this? Everyone.
Consider, who would pay your rent and other bills if you were in the hospital or stuck overseas on vacation? Designating a power of attorney gives a person authority to handles these types of financial matters for you.
Advanced Health Care Directive
Who needs this? Everyone.
An AHCD is the document that allows you to dictate the person you feel most comfortable to make health care decisions for you if you are unable. You are also able to tell that person whether you want relief from pain or prefer to be drug free. You also empower that power to "pull the plug" if you do not want to be kept alive and unconscious. We often think of hospitalization as something that happens to us when we're old. But any day an accident or illness could temporarily or permanently put a person in the hospital. If you are unconscious for any reason, the doctors need to know who to look to for answers. Telling your family isn't enough.
A well-known example is the Terri Schiavo case, in which Ms. Schiavo was in a persistent vegetative state for 15 years. Her husband and family battled over whether to take her off life support. Ms. Schiavo was only 26 when she took ill.
Contents of an Estate Plan
Estate Planning Package
For a flat-fee, our office provides you with a full estate planning package that includes, but is not limited to, the following documents:
- Family or Individual Trust
- Declaration of Trust
- Certificate of Trust
- Assignment of Personal Property
- Advanced Health Care Directive
- Power of Attorney
- Final Disposition
Family or Individual Trusts
A recovable living trust is an agreement between the "Trustor" and the "Trustee" to hold the trust assets for the beneficiary. The Trustor is the person who sets up a trust and the Trustee manages it. When you set up a trust, you are both the Trustor and Trustee, unless you dictate otherwise. During your lifetime, you are also the beneficiary. By correctly maintaining your assets in a trust you can avoid probate in California.
When you create an estate plan, your will is commonly referred to as a "pour-over" will. It ensures that assets that were not previously transferred into your Trust, be added at the time of your death. This is important, because any assets that are not included in your Trust can only be distributed through probate. Your will also designates the guardian of any minor child.
Advance Health Care Directive
The Advance Health Care Directive is the most important document for any person of any age to have. The Advance Health Care Directive is the document that gives certain named agents the power to make medical decisions, sign consents and/or releases with hospitals and/or doctors. This is also the document that controls end-of-life decisions. It is important to use this document to designate the person in your life that is willing and able to carry out your important health care desires. For example, if you do not wish to be kept alive on life support, you must dictate this in your Advance Health Care Directive.
In addition to the Advance Health Care Directive, all persons should execute HIPAA Authorizations and Waivers. This is a stand-alone document that authorizes your health care providers to release otherwise confidential information to whomever you designate. If you want close friends or loved one access to your health care information when you are ill, you must provide them with authority.
Power of Attorney
A Power of Attorney gives a named agent the power to deal with any non-trust assets in the event of your incapacity. This might include paying bills, maintaining banks accounts, or keeping your business running. A General Power of Authority may also designate very broad powers such as the power to dispose of, sell, convey and encumber your real and personal property. You may not wish to assign such broad powers, in which case an attorney is necessary to ensure that your Power of Attorney only provides limited authority to your designated agent.
Planning for one's death can be hard. So, there is no better time to plan than when you are feeling healthy. Even if you are not ready to invest in a plot of land or buy a headstone, you may already have ideas of how you would like your remains to be dealt with. Do you want to be cremated? or Buried? Putting these desires into writing is the only way to ensure they are carried out.