durable financial power of attorney

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?

Getting started with estate planning can seem like a daunting task. The various documents and the vocabulary can be confusing if you’ve never seen them before. Here’s a guide to the basics of a foundational estate plan:

Trust: A trust is an agreement that makes it easier to manage assets during your lifetime and after your death.  The person creating the trust is called the settlor or the trustor, and the person who manages the trust is the trustee. A trust can have more than one settlor and more than one trustee – in a community property state like California, married couples often create a joint trust, where they are each a settlor and each a trustee.  People can also have more than one trust – sometimes couples will create a joint trust for their community property, and each will also have an individual trust for his or her separate property.

A trust can be either revocable or irrevocable.  For basic estate planning, people generally create revocable trusts (also called living trusts or inter vivos trusts) during their lifetime, which means that they can change or completely revoke the trust at any time.  After their death, the trust becomes irrevocable, which means it cannot be changed.  Irrevocable trusts can also be used during a settlor’s lifetime for complex tax planning.


Continue Reading Estate Planning 101: Getting Started