advance health care directive

Last week, I blogged that a common refrain that we hear from people when we encourage them to consider estate planning is “But I don’t need an estate plan.”  This post addresses the second of three of the most common refrains that we hear.

I don’t need an estate plan because I want everything to go to my spouse.

Many married (or registered domestic partner) couples believe that they don’t need an estate plan because each spouse or partner wants everything to go to the other.  This is true for community property.  However, if either spouse owns any separate property, the separate property will be divided between the surviving spouse and other relatives.  Separate property generally includes anything owned prior to marriage and anything acquired during marriage by gift or inheritance, and titling a separate property asset jointly or commingling it with community property will not convert it to community property.  Many married couples will have at least some separate property, and if the surviving spouse and his or her in-laws do not get along, it could lead to disputes.  Additionally, if you have children, half to two-thirds of the separate property will go to your children, depending on the number of children.  If the children are minors, a court proceeding may be needed to distribute the assets to a guardian of the estate for the child or into a blocked account until the child turns 18 (even if the child has a surviving parent).   Even if a large sum of money is involved, there is no way to prevent the child from accessing the entire account at age 18.


Continue Reading You Need an Estate Plan (Even in Your 20s and 30s) (Part Two)

A common refrain that we hear from people when we encourage them to consider estate planning, especially people in their twenties and thirties, is “But I don’t need an estate plan.”  The reasons vary, and this post will address the first of three of the most common ones.

Reason # One:  I Don’t Need an Estate Plan Because I Don’t Have Very Much.

For young people just starting out, this is a common belief.  But, estate planning isn’t just a way to distribute your property after your death – it’s also planning for your incapacity and making arrangements for your minor children.  A “foundational” estate plan generally consists of three or four documents:  (1)   a durable power of attorney for finances (DPAF), (2) a durable power of attorney for health care/advance health care directive (DPAHC), (3) a will, and occasionally, (4) a trust.  Of those four, the first two of those documents are exclusively for use during your lifetime.  The DPAF names someone to handle your financial and personal affairs if you are ever unable to do so, and the DPAHC names someone to make medical decisions for you and sets forth your wishes for medical treatment.  Additionally, if you have a trust, the trust names a person to manage the assets in the trust both during your life (if you are ever unable to do so) and upon your death.


Continue Reading You Need an Estate Plan (Even in Your 20s and 30s) (Part One)

KellyDSince my practice primarily involves disputes, I am often asked to assist clients with the issues that arise when one of their loved ones becomes incapacitated and can no longer make financial or health care decisions for himself or herself.  In a perfect world, the loved one has a foundational estate plan that includes a durable financial power of attorney and an advance health care directive that name an agent (also called an attorney-in-fact) who can step in and make financial and health care decisions when the loved one is no longer able to make those decisions for himself or herself.  In these “perfect world” scenarios, once a determination of incapacity is made, it is relatively easy for the agent to step in and begin managing his or her loved one’s financial affairs and medical decisions and needs.  But what happens if the loved one does not have a foundational estate plan, or if he or she is in need of more protection than a durable financial power of attorney or advance health care directive can provide?  In those difficult situations, court intervention is often required.

If your loved one becomes incapacitated and does not have a durable financial power of attorney (and “durable” is the key word here:  a financial power of attorney is only “durable” if it specifically states that it remains in effect even in the event of incapacity), it may be necessary for you to seek the appointment of a conservator so that there is a person who has the authority to manage your loved one’s financial affairs.  This is also true if your loved one does not have an advance health care directive or durable power of attorney for health care that appoints an agent to make health care decisions for him or her in the event of his or her incapacity:  in that event, it may be necessary for you to seek the appointment of a conservator so that there is a person with authority to make health care decisions for your loved one.


Continue Reading My Loved One is Incapacitated. Now what?