California Probate - Law Offices of Janet Brewer Blog

What Parts of Estate Plan Should Be Reviewed in the Pandemic?

“Many people are taking this time at home during the COVID-19 crisis to update their estate plan. Here are six critical estate plan components you should focus on, in light of the current pandemic.”

Forbes’ April article entitled “6 Parts Of Your Estate Plan You Should Review Now” discusses several items in your plan that should be examined, in light of the coronavirus pandemic.

In this pandemic, who will make important financial and medical decisions for you, if you’re unable to make them for yourself?

Make certain that you’ve designated a person who is trustworthy and reliable. Don’t forget to name a back-up for your power of attorney and health care proxy.

Look at your will. Make sure the person you’ve named as the executor of your estate is current. This is the individual who’ll attend to your affairs after you die and take care of probating your will, if necessary. She will also file income and tax returns on behalf of the estate. If you have minor children, name a guardian for them in the will.

Review your trust. Your revocable living trust usually benefits you while you’re alive. It can also be used to benefit others, such as a spouse and children. Name those who will receive the assets at your death. If your beneficiaries are minors or not mature enough to handle a sizeable sum, you might hold assets for them in trust, until they’re old enough to handle the money themselves. Review your decision regarding your trustee and see that this is the right person to administer the trust, based on your wishes.

Be sure to fund the trust. This will avoid probate of the assets on your death and lets the successor trustee control the assets for your benefit, if you’re incapacitated. If you fail to do so, it will create a host of problems after you’re gone. Your heirs will need court authority to access your assets, which can be an expensive and time-consuming endeavor.

Update your beneficiary designations. This includes the beneficiary designations on your life insurance policies, retirement accounts and any brokerage accounts that are payable on death to a beneficiary.

Ask your estate planning attorney about taking advantage of estate tax opportunities. It is important to have everything in order in this pandemic. If you have any questions about your current estate plan, please call or email us today.

Reference: Forbes (April 15, 2020) “6 Parts Of Your Estate Plan You Should Review Now”

What Should I Keep in My Safety Deposit Box?

A safe deposit box isn’t a smart choice for everything. Kiplinger’s recent article entitled “9 Things You'll Regret Keeping in a Safe Deposit Box” advises that there are some items you might not want to lock up in your bank, which isn’t open nights, holidays, or weekends, especially considering that in this pandemic, hours of operation for many businesses are reduced. In fact, some financial institutions, like Bank of America, have temporarily closed some locations. There are other banks that require an appointment for in-branch services, like accessing your safe deposit box. This would create a headache for you in your attempt to retrieve important documents or items when you need them.

Here are some important items you should store elsewhere, because you’ll need to access more often or on short notice. Maybe they should be in a fireproof safe that’s secured to the floor in your home.

Cash. Keeping a wad of cash in a safe deposit box, isn’t a good idea because if you need it in a pinch and the bank is closed, you’re out of luck. In addition, that cash will lose its buying power over time because of inflation and some banks don’t allow cash in a safe deposit box. Finally, cash in a safe deposit box isn’t protected by the FDIC. To have FDIC insurance (covering up to $250,000 per depositor per insured bank), your cash needs to be deposited in a qualifying deposit account, such as a checking account, savings account, or CD.

Your Passport. OK, most of us don’t need your passport in hand at a moment’s notice. However, you may need to take an emergency trip, which will happen during non-banking hours. Without your passport handy, there’s not much you can do about those calls in the middle of the night requiring you to dash.

The Original Copy of Your Will. You may want to keep a copy of your own will, your spouse’s and any in which you’re named the executor in a safe deposit box. However, don’t store the original copy of your will there, particularly if you’re the only owner of the safe deposit box. That’s because after your death, the bank will seal the safe deposit box, until your executor can prove she has the legal right to access it. This could mean a long and potentially expensive delay before your will is executed and your assets can be disbursed to the intended heirs. Keep the original copy of your will with your estate planning attorney or in a location where your executor can get to it without any legal hassles.

Letters of Instruction. Many people write a letter of instruction to accompany their will. This letter can describe whether you want to be buried or cremated and the type of service you want. This letter can include details on specific bequests of sentimental items, but it’s no help if its’ locked in your safe deposit box.

Durable Power of Attorney (POA). This document gives a trusted friend, family member, or professional adviser the authority to financial make decisions on your behalf. However, if your POA is in a safe deposit box that no one can access, the person you’re depending on to protect you at your time of need could find her hands tied. Keep the original POA with the original copy of your will and give copies to those who may need it one day.

Advance Directives. A living will and a health care proxy are sometimes collectively known as advance directives, but each has a unique purpose. A living will states your wishes for end-of-life care, and a health care proxy (also known as a health care power of attorney) names a person to make medical decisions for you, if you can’t make them yourself. Neither is any good locked away in an inaccessible safe deposit box.

Uninsured Jewelry and Collectibles. Heirloom jewelry and your valuable stamp collection and rare coins are good candidates for a safe deposit box, but they must be properly insured. The FDIC doesn’t insure safe deposit box contents, and neither does the bank unless it’s stated in your agreement.

Any Illegal or Dangerous Items. Your bank should provide you with a list of items that are not permissible to keep in a safe deposit box. This will include things like firearms, illegal drugs, and hazardous materials.

Reference: Kiplinger (June 1, 2020) “9 Things You'll Regret Keeping in a Safe Deposit Box”

Can I Make My Retirement Plan My Estate Plan?

“People are worried about the possibility of a sudden death due to COVID-19, and they want to get their legal affairs in order. Exacerbating the situation are the stories we read in the media about patients who are unable to communicate with loved ones, and hospitals that, because of the exigent circumstances, are creating their own do-not-resuscitate (DNR) rules—even if they conflict with the patient’s wishes.”

If you’re in a situation where you must quickly create or update your estate plan, here are some suggestions that might help you. Every situation is different, Forbes’ article “Seven Tips For Converting Your Retirement Plan To Your Estate Plan,” says, but these some tips that may start the process.

1. Speak with an experienced estate planning attorney. An experienced estate planning attorney will help make certain that your documents make sense for your situation and are legally drafted. Contact our office today to schedule your consultation.

2. Create your will. You can only have one valid will, and it should be made under the state laws of your domicile with the help of an experienced estate planning attorney.

3. Draft Power(s) of Attorney. A Power of Attorney (POA) is a legal document through which you appoint the person you want (your “agent”) to act on your behalf if you are unable to do so, usually because of physical or mental incapacity. POAs are best created using the rules of the state in which you anticipate their use.

4. Complete your HIPAA releases. If you have designated an agent under your medical Power of Attorney, but she doesn’t have HIPPA authority to be informed of your medical condition, it will be a hassle. HIPAA is designed to protect a person’s health information privacy. Sign a HIPAA Release Form for your POA agent in advance, to avoid headaches for your family.

5. Draft a living will or advanced directive. This document states your preferences for life sustaining treatment. Living wills generally have provisions related to end-of-life care and require the maker's and witnesses' signatures to make them legally binding—but this varies in each state.

6. Understand the POLST process. A Physician Orders for Life-Sustaining Treatment (POLST) order is a medical order. The process improves communication of a person’s decisions to accept or decline medical intervention and to make certain that these decisions are honored. Advanced directives and POAs are important, and generally should be filed with your physician and hospital, but a POLST order is in many medical emergency situations the one form the doctor will see.

7. Create a document storage plan. Estate planning forms should be kept in places where they are easily accessed. Don’t place them in a safety deposit box, because of rules banks have about access after the box holder’s death.

Reference: Forbes (April 9, 2020) “Seven Tips For Converting Your Retirement Plan To Your Estate Plan”

What Should My Estate Plan Include?

“Though most people who contract COVID-19 experience mild symptoms, it doesn’t hurt to be prepared if you do need to be hospitalized. It can feel scary thinking about getting sick or not being able to make decisions for yourself, but an estate plan is meant to ease your fears. After all, wouldn’t you feel better knowing that the burden of making health and financial decisions will never fall on unprepared family members?”

The Huffington Post’s recent article entitled “A Guide To Estate Planning During The Coronavirus Pandemic” says that almost everyone should have an estate plan—even if there’s no major health threat. If you don’t have one, right now is a great time to put it together.

In the COVID-19 pandemic, the two most critical documents to have are medical and financial powers of attorney. You should name someone to do your banking or make your medical decisions, if you are quarantined in your home, admitted to the hospital, or become incapacitated. When you have those in place, you need to create a comprehensive estate plan. Let’s look at the documents you should have and what they mean.

1. A Financial Power of Attorney. This is a legal document that gives your agent authority to take care of your financial affairs and protect your assets by acting on your behalf. For example, your agent can pay bills, write checks, make deposits, sell or purchase assets, or file your tax returns. Without an FPOA, there’s no one who can act on your behalf. Family members will have to petition the probate court to appoint a guardian to have these powers, and this can be a time-consuming and expensive process.

2. A Health Care Power of Attorney. Like a financial power of attorney, this legal document gives an agent the power to make health care decisions on your behalf, if you become incompetent or incapacitated. If you’re over the age of 18 and don’t have an HCPOA, your family members will have to ask the probate court to again appoint a guardian with these powers.

3. A Living Will (Advance Health Care Directive). This allows you to legally determine the type of end-of-life treatment you want to receive, in the event you become terminally ill or permanently unconscious and cannot survive without life support. Without a living will, the decision to remove life support is thrust upon your health care agent or family members, and it can be an extremely stressful decision. If you draft a living will, you detail your wishes and take that decision out of their hands.

4. A HIPAA Waiver. An advance health care directive will likely contain language that allows your agent to access your medical records, but frequently hospitals will refuse access to medical information without a separate HIPAA waiver. This lets your agents and family members access your medical data so they can speak freely with your physicians, if there is a medical emergency or you become incapacitated.

5. A Will. A last will and testament is a legal document through which you direct how you want your assets disbursed when you pass away. It also allows you to name an executor to oversee the distribution of your assets. Without a will, the distribution of your assets will be dictated by state law, and the court will name someone to oversee the administration of your estate. A will also lets you name a guardian to take care of your minor children.

6. A Living Trust. A revocable living trust is a legal tool whereby you create an entity to hold title to your assets. You can change your trust at any time, and you can set it up to outlive you. In the event you become incapacitated or are unable to manage your estate, your trust will bypass a court-appointed conservatorship. A trust also gives you privacy concerning the details of your estate, because it avoids probate, which is a public process. A living trust can also help provide for the care, support, and education of your children, by releasing funds or assets to them at an age you set. A living trust can also leave your assets to your children in a way that will lessen the ability of their creditors or ex-spouses to take your children’s inheritance from them.

Contact our office today to schedule your consultation.

Reference: The Huffington Post (April 7, 2020) “A Guide To Estate Planning During The Coronavirus Pandemic”

Why Do I Need an Advanced Healthcare Directive?

“An advanced healthcare directive - also known as a living will - is a legal document in which a person lists the specifics of medical care and comfort actions they desire, should the individual no longer be able to make decisions for themselves due to illness or incapacity.”

During the prime of our lives, we typically don't give much attention to thoughts about becoming seriously ill or about the end of life. Conversations about sickness and your own mortality aren’t easy topics to raise. However, it’s important for us to approach these heavy topics with our families, so we rest easy knowing their needs will be met if or when our health fails.

Rome News-Tribune’s recent article entitled “Things to know before drafting a living will” explains that an advanced healthcare directive, also called a living will, is a legal document in which you can detail the specific types of medical care and comfort treatment that you want, if you are unable to make decisions for yourself because of illness or incapacity. A living will can state whether life support should be used and whether pain medication should be administered.

A living will is separate and distinct from a traditional will. A will is a legal document that states how you would like your assets distributed after you pass away.

A living will is not always required, if you don’t have any strong feelings about the decisions made on your behalf while you are incapacitated. However, if you do want to provide instruction about your treatment and care, a living will is the best way to be certain that your choices will be carried out. Here are some other questions you may want to ask yourself about a living will.

• Do I want to eliminate the stress of difficult decisions from my family?  A living will can relieve your grieving family of the responsibility of making very tough decisions of invoking lifesaving (“heroic”) measures.
• Do I have strong feelings about life-saving methods? A living will allows you to state your exact preferences on feeding tubes, life support when brain function is minimal and many other circumstances.
• Do I have a trusted person who is able to carry out wishes? A health care proxy is an individual that you name and give the power to make decisions for you, if you are unable to express your preferences for medical treatment. Along with a living will, the health care proxy or “durable medical power of attorney” can fulfill your wishes accordingly.

Ask your estate planning attorney about this important component of medical and estate planning. You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Rome News-Tribune (March 7, 2020) “Things to know before drafting a living will”

Have You Prepared End-Of-Life Decisions?

“Unless you are a spring breaker partying it up, you have probably given your own mortality a once-over or two during these long COVID-19 days.”

Florida Today’s recent article entitled “As COVID-19 spreads, are your end-of-life directives in order?” explains that the Conversation Project surveyed Americans about the need for end-of-life directives. About 92% of respondents thought it important to discuss their wishes for end-of-life care and 95% of them are willing to talk about these wishes. However, just 32% have actually gone ahead and had the discussion.

With the threat of COVID-19, there’s a sudden urgency to engaging in discussions of end-of-life treatment. Although the young and healthy are more apt to fight through the illness, the elderly and the infirm are not likely to survive, despite using a ventilator. It’s hard to put someone on a ventilator and even harder to have it removed, when there’s no chance of recovery.

For example, if you didn’t have a healthcare directive and you ended up on a ventilator—but that wasn’t what you wanted—you could live a long time in a nursing home with a very poor quality of life. Without an advance directive and if you’re not able to speak for yourself and haven’t named an agent, the state will appoint a guardian to make these critical decisions. This will be a person who knows nothing about you but will have the authority to make decisions about your health and well-being. If your family is found, and they disagree with the guardian, it can be a big problem.

Name someone who can speak for you, when you can no longer do so. Tell them your wishes for end-of-life care. Your agent will need to make tough, quick decisions on your behalf. The next step is to complete a health care proxy or power of attorney. This is a legal document in which you appoint the person to be your agent, when health care decisions need to be made and you can’t speak for yourself.

You should have your attorney prepare an advance directive or living will. This is another legal document that states your wishes regarding end-of-life medical care and delineates treatments you do or not want.

Give your agent a copy of your living will. You should also give a copy to your primary care physician and to anyone else you think should have it. Keep a copy available for yourself. Let your family know where the document can be located.

Your advance directives should provide instructions on DNR (“do not resuscitate”) and the use of a ventilator or tube feeding, hospice and palliative care and organ donation. It’s not a pleasant topic, but the time to discuss it is before you’re headed for the hospital.

We can help you create or update your complete plan, simply call or email us today.

Reference: Florida Today (April 14, 2020) “As COVID-19 spreads, are your end-of-life directives in order?”

All the Medical Treatment Estate Planning Documents You Need to Sign

When trying to get your affairs in order, you may wonder which medical treatment estate planning documents you need to sign. In no particular order, you can choose to sign an advance directive, a power of attorney, a living will, a POLST form, or a DNR form.

Advance Directive

An advance directive combines a medical power of attorney and a living will into one document. You can designate an agent to make medical decisions for you, explain which life-saving or -sustaining treatments you want to receive, and specify end-of-life wishes. An advance directive could contain instructions about when to remove life support, organ donation, last rites, making anatomical donations, funeral arrangements, and more.

Power of Attorney

A medical power of attorney gives a specified person, called an agent, the legal power to make medical decisions for you if you are incapacitated. You can specify in the power of attorney document which decisions the agent can make, or you can leave it open and allow the agent to make all necessary decisions. You should notify the agent that you choose so he or she knows to act in an emergency. Consider discussing your wishes in depth with your agent as well.

Living Will

A living will explains your end-of-life wishes, including your wishes for life-sustaining treatment or lack thereof. For example, you can detail whether you want doctors to put you on life support, whether you want intubation or feeding tubes, and what you want to have happen to your body after death (organ donation, burial, or other options).

POLST Form

Similar to an advance directive or living will, a California Physician Orders for Life-Sustaining Treatment (POLST) form specifies which life-sustaining treatment you want to receive. You can check boxes to receive defibrillation or CPR, IV medications, or other kinds of treatment. If you have specific preferences about treatments you do not want to receive, a POLST may be a good idea.

DNR Form

Finally, a Do Not Resuscitate (DNR) form tells doctors not to perform life-saving measures if your heart stops beating or you stop breathing. If you choose to fill out this form, you’ll want to carry copies with you or have it on file with your doctors.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

What Is a California Physician Orders for Life-Sustaining Treatment (POLST) Form?

If you are very ill or just want to give your doctors more instructions about the care you want, consider signing a California Physician Orders for Life-Sustaining Treatment (POLST) form.

What Is a POLST Form?

A POLST form can inform your doctors which kinds of treatment you want or do not want. The form applies if you are in cardiac arrest or otherwise experiencing a serious medical condition. 

For example, you can say on the form that if you are in cardiac arrest, you do not want resuscitation (including chest compressions (CPR), defibrillation, or heart-stimulating drugs). There are boxes to check on the form to specify the type of treatment that you want, plus you can add additional information if desired.

Further, you can specify whether you would like doctors to give you other life sustaining measures, including:

• IV antibiotics
• IV fluids
• Oxygen
• Suctioning
• Artificial nutrition and feeding tubes
• Intubation

Again, you simply check boxes on the form to specify what you prefer. The form also includes a section to indicate whether you have an advance directive.

What Is the Difference Between a POLST Form and an Advance Directive?

A POLST form focuses on the specific kinds of life-sustaining treatment you want or do not want. While you can include some information about life-sustaining treatment in an advance health care directive, it also allows you to appoint a health care agent and specify end-of-life wishes. End-of-life wishes might include choices about when to remove life support, organ donation, last rites, anatomical donations, and more.

In contrast to an advance directive, the POLST form is easy for medical staff to read in an emergency. It clearly specifies which treatment you want on a single page. In sum, in conjunction with an advance directive, the POLST form protects your wishes in case of a serious medical emergency.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Is Your Estate Plan COVID19-Ready? Three Things to Review Now

Unique aspects of the coronavirus pandemic may cause you to re-evaluate some elements of your current estate plan.

Even if you have done comprehensive estate planning with the guidance of a qualified attorney, you may want to re-evaluate certain elements of your plan now, through the lens of the coronavirus pandemic.

Why? There are two uniquely challenging aspects of this pandemic that your current plan may not adequately address.

1. Medical treatment for severe cases of COVID19 frequently involves intubation and ventilator therapy to combat respiratory failure … and
2. Quarantine and isolation orders blocking hospital visitors create some communication barriers between patients, doctors and family members.

How might these unique challenges impact your estate plan?

Living Wills. If your living will contains a blanket prohibition on intubation, you may want to reconsider that decision.

Durable Powers of Attorney (DPOA). Given the communication difficulties that may arise when a patient is hospitalized during this pandemic, you may want to revisit the terms of your DPOA to make it easier for your agent to act on your behalf.

Health Care Proxy. A health care proxy allows you to appoint someone else to act as your agent for medical decisions. Under normal circumstances, this person would likely confer with your attending physicians in person and again, these in-person communications may be difficult right now. You want to add language to expressly authorize electronic communication with your agent.

A qualified estate planning attorney, who focuses exclusively in this area of the law, can advise you on whether your current plans accurately represent your wishes during this uniquely challenging time. We are here for you today. Please call or email today.

Resource: ElderLawAnswers, Three Changes You May Want to Make to Your Estate Plan Now Due to the Pandemic, April 30, 2020

COVID-19 Estate Planning Considerations and Opportunities

The current coronavirus pandemic has changed the world in dramatic and unprecedented ways in an incredibly short period of time. And for many individuals, the pandemic has brought about feelings of powerlessness and caused us to reflect on our mortality. Taking proper precautions is essential to prevent the unnecessary spread of the virus.

However, many individuals may also want to take this opportunity to consider additional estate planning actions that they can take to further protect themselves and their families in the event of unexpected illness or death. And as many are already labeling this time period as “The Great Pause” -marked by huge portions of the population who are unable to work, are working in a limited capacity, or are working from home – it could be an ideal opportunity to get your ducks in a row regarding your estate plan.

Appropriate actions during the pandemic can include some or all of the following:

Consider Your Current Estate Plan

If you currently have an estate plan, review it to determine whether the documents are still in line with your current wishes. Circumstances in life can change quickly, and even if you’ve updated your estate plan within the last few years, any additional births, deaths, marriages, or divorces in your family could likely mean that you need to make updates.

Updates are also essential if there have been major purchases or sales of assets (particularly property). You should also review your executor to ensure that his individual is still the person you would like to serve in the role and that they are still up to the task if the need arises. 

Address Advance Directives

Advance directives, such as identifying your health care proxy and power of attorney, and creating a living will, are especially important during times when the likelihood of falling ill in increased. While none of us know for certain if or when we may become ill with a life-threatening condition, the spread of COVID-19 is increasing the risk for many population groups.

And while it’s certainly probable that the majority of the population will not be impacted by a death within the family, it’s always a better course of action to prepare for the unthinkable. In estate planning, this means identifying who should make your financial and medical decisions in the event that you become incapable of doing so yourself. These decisions may be particularly hard and include elements such as what actions you would like taken in the event that you become unable to survive without medical assistance. It is best to select an individual who will act in accordance with your wishes, which may or may not be an individual within your close family.

Look for Opportunities to Reduce Your Tax Burden

One of the primary goals of most estate plans is to facilitate the transfer of wealth between generations and structure this transfer in a way that retains the most assets. One of the best ways to do this is by looking at opportunities to reduce the tax burden, especially the estate and gift taxes. Discussing opportunities for reducing this tax burden with an experienced estate planner can often optimize the outcome when the assets are transferred.

Update Other Information

In addition to these actions, you should also consider any additional elements that may require legal documentation. If you have minor children, you will want to identify a legal guardian.

It’s also crucial to update other things that may be necessary in the event that you were to become ill, such as who currently has access to your medical records. There are strict regulations in place, through HIPAA restrictions, dictating who medical providers can share information with – so if you would like to identify an individual upfront, this should be made clear to your medical provider.

It’s also a great idea to consider updating your list of passwords and digital information. Having a repository to hold all of this information will ensure that your family or other beneficiaries can access your digital accounts and any stored media, such as treasured family photos and videos.

Recognize the Long-Term Value of Planning

While COVID-19 is certainly a danger for many in the nation currently, the reality is that even for those who remain unimpacted by it directly, there will one day be a need for an estate plan. While the current pandemic offers an ideal opportunity for updating your plan (or putting one in place for some individuals), having a current estate plan is always an action that can best protect your wishes and assets – even after the pandemic has passed.