California Probate - Law Offices of Janet Brewer Blog

Coronavirus News Should Make You Think about Estate Planning

“Nobody likes to think about their own mortality, and that's why so many people go without basic estate planning documents. Often, an event like the coronavirus can be the kick in the pants you need to get your affairs in order.”

The global Coronavirus (COVID-19) outbreak has many of us thinking about what could happen if the disease spreads more fully across the general population. We all need to plan for what could possibly happen. To protect yourself and your family, it’s smart to be certain that you have the following these documents prepared and updated, says Motley Fool’s recent article entitled “The Coronavirus Should Have You Thinking About These 4 Things.”

1. A will or revocable trust. Be sure that your assets will pass to those who you want to receive them after your death. This is critical during crisis times. You don't want to make things any harder than they need to be. Create an estate plan to avoid potentially expensive and time-consuming processes like probate, which will have greater importance, if your family is confined to their homes in a quarantine situation.

A simple will can cover what happens to your assets at death. This typically works well, especially for modest estates. State laws differ on how complicated a probate process would be with a basic will. Some people opt to use a fully funded revocable trust that doesn't require probate. For either a will or a revocable trust, make sure that it’s up to date and reflects your current preferences and family circumstances.

2. Updated beneficiary designations. If you have an IRA, 401(k) account, or life insurance policy, those you name as beneficiaries of that account will receive the proceeds, despite a totally different from arrangement in your will or trust. Many of us also don’t designate any beneficiary for these accounts, which means added complications in the event of death.

3. Healthcare power of attorney. When we’re in the midst of this Coronavirus, it’s even more urgent that you'll be able to get the healthcare you need, if you're hit with this illness. A durable power of attorney for healthcare will give the individuals you choose the ability to make whatever medical decisions you specify on your behalf. An estate planning attorney can help you draft documents that match your specific wishes.

4. Financial power of attorney. You can designate an agent to help take care of your finances, if you become incapacitated or otherwise unable to handle your financial affairs. A general durable power of attorney for financial matters is another document that lets you delegate responsibility and authority to make financial transactions to the person you name.

Estate planning may not be the highlight of your week, but the Coronavirus outbreak has more people thinking about what they need to do. Make sure your family will have what they need even if something happens to you.

Reference: Motley Fool (March 8, 2020) “The Coronavirus Should Have You Thinking About These 4 Things”

If You Have Not Yet Named Someone with Medical Power of Attorney, Do It Now

In these uncertain times, it’s more important than ever to have your legal, financial and medical ducks in a row. Sadly, when serious illness strikes it is usually quite rapid and often unexpected. In these times, however, we do have forewarning that we are all at risk of contracting COVID-19, the coronavirus.

If you have not yet named someone with Medical Power of Attorney, stop procrastinating and get this crucial planning in place now.

What is a Medical Power of Attorney?

A medical power of attorney is a legal document you use to give someone else the authority to make medical decisions for you when you can no longer make them yourself.  This person, also known as an agent, can only exercise this power if your doctor says you are unable to make key decisions yourself.

Other Terms for Medical Power of Attorney

Depending on the state where you live, the medical power of attorney may be called something else. You may have seen this referred to as a health care power of attorney, an advance directive, advance health care directive, a durable power of attorney for health care, etc. There are many variations, but they all mean fundamentally the same thing.

Be aware that each state has their own laws about medical powers of attorney, so it’s important to work with a qualified estate planning attorney to ensure your decisions will be enforced through legally binding documents. Also, some states may not honor documents from other states, so even if you made these decisions and created documents in another state, it’s wise to review with an estate attorney to ensure they are legally valid in your state now.

What Can My Medical Agent Do for Me?

Just like there are many different terms for the medical power of attorney, there also are different terms for the medical agent – this person may be referred to as an attorney-in-fact, a health proxy, or surrogate.

Some of the things a medical POA authorizes your agent to decide for you:

• Which doctors or facilities to work with and whether to change
• Give consent for additional testing or treatment
• How aggressively to treat
• Whether to disconnect life support

We are ready to help walk you through these decisions, understand the ramifications of your choices, and memorialize your plans in binding legal documents. We are currently offering no-contact initial conferences remotely if you prefer. Book a call now and let us help you make the right choices for yourself and your loved ones.

What Critical Estate Planning Document are Californians Missing?

“Around two-thirds of all Americans have not prepared a health care directive, according to a December 13, 2019 article written by a personal finance specialist at Forbes. The author noted the irony of this figure, pointing out that California was the first US state to enact a law regarding health care directives back in 1976.”

The California Probate Code sets out the requirements and process for executing an Advance Health Care Directive, also known as a health care power of attorney. This document enables a person (the principal) to appoint an agent (a trusted friend or relative) to make health care decisions on her behalf. If the principal becomes incapacitated, the agent will decide her medical procedures, treatment and other care.

Insurance News Net’s recent article entitled “Finance Experts Warn: 66% of Californians Don't Have a Key Estate Planning Document” explains that the law enables the principal to do the following:

• Detail specific instructions on certain medical issues, such as end-of-life care and pain relief;
• State her wishes concerning the donation of organs; and,
• Name a physician who has primary responsibility for medical care.

Too many people think they're finished with their estate plan, after creating a will or trust. However, that leaves some critical gaps. A comprehensive, well-crafted estate plan isn't just what happens to your property at death. It should also contemplate what happens if you're incapacitated and unable to make decisions on your own, which is addressed with an advance health care directive.

Here’s a tough situation that individuals could experience without a health care power of attorney, especially for a family. If you don't have a health care directive, your medical care might be on hold. Despite that the fact you express your wishes to someone, that doesn't mean it’s legally binding. As a result, without a power of attorney, the only way your spouse, children, or other family members can obtain the authority to make health care decisions, is to go to court and file a petition to act as your guardian. This can take some time, especially if they’re not all in agreement.

By preparing an advance health care directive, you give your agent decision-making authority via the document instead of through the courts.

There are certain state-specific requirements involved with this process, like having people observe and sign as witnesses, or even having it notarized. Ask a qualified estate planning attorney to help you draft it correctly.

Reference: Insurance News Net (Jan. 16, 2020) “Finance Experts Warn: 66% of Californians Don't Have a Key Estate Planning Document”

Choosing the Right Estate Planning Lawyer for Your Family

There are a lot of estate planning lawyers out there, but not all may be right for your family. When choosing an attorney, ask yourself a few key questions along the way.

What Are Your Goals in Estate Planning?

Think about the goals you want to achieve by making an estate plan. For example, would you rather get a basic plan done very quickly, or spend a bit more time tailoring the plan? You may think that you need only a will or only a trust, but after talking to a couple of attorneys it could become clear that you need more planning done. You also may have the goals of peace of mind that your plan is done, and comfort in working with a lawyer who understands you.

What Are Your Expectations for Your Lawyer?

Also think about your expectations for a lawyer, and talk to potential lawyers about those expectations when you meet them. You might prefer communication via email only, or you might want to meet in person several times. You might want to review all documents in advance before you sit down to sign them. Or you might want the lawyer to show you where each of your wishes are listed in your estate plan. Different lawyers have different styles of working and communicating, so thinking about what you prefer can help you decide whether someone is a good fit. But also be aware that most lawyers are very busy and may not respond to your emails or calls right away, though they should get back to you within a few days.

Do You Have Any Special Circumstances?

One big reason that you might want one lawyer over another is special expertise in a certain area. Your family might have circumstances that require a lawyer with related knowledge to make a proper estate plan. For instance, you might need a particular lawyer if you:

• Are not a U.S. citizen or have relatives who are not citizens
• Own a small business
• Have a child with special needs
• Are wealthy or earn a high salary
• Own a lot of real estate

Some estate planning lawyers focus on clients who need international estate planning or who have tax and business planning needs. Others have special knowledge of disability planning, high net worth estate options, or real estate management. Your needs can help you narrow down the pool of estate planning attorneys to find a good fit.

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

Managing an Aging Parent’s Financial and Legal Life

“If elderly parents aren’t good at record-keeping, a family member will need to identify this information and keep it in a place where it can be referenced when needed.”

As parents age, it becomes more important for their children or another trusted adult to start helping them with their finances and their legal documents, especially an estate plan. In “Six tips for managing an elderly parent’s finances,” ABC7 On Your Side presents the important tasks that need to be done.

Make sure the family knows where important personal and financial documents are in an emergency. Start with a list that includes:

• Bank, brokerage and credit card statements
• Original wills, power of attorney, healthcare directive and living will
• Insurance policies
• Social Security information
• Pension records
• Medicare information

They’ll need a list of all accounts, safe deposit boxes, financial institutions and contact information for their estate planning attorney, CPA and financial advisors. Even if they don’t want to share this information until an emergency occurs, make sure it is somewhere a family member can find it easily.

Set up a direct deposit for any incoming funds. Automating the deposit of pension and benefit checks is far more secure and convenient for everyone. This prevents a delay in funds being deposited and checks can’t be stolen in the mail or lost at home.

Set up automatic bill payment or at least online bill payment. Making these payments automatic will save a lot of time and energy for all concerned. If your parents are not comfortable with an automatic payment, and many are not, try setting up the accounts so they can be paid online. Work with your parents, so they are comfortable with doing this. They will appreciate how much easier it is and saving themselves a trip to the post office.

Have a “Durable Power of Attorney” prepared. This is a legal document prepared by an estate planning attorney that gives one or more people the legal authority to handle finances or other matters, if they become mentally or physically incapacitated.

Have a “Living Will” and a “Healthcare Power of Attorney” prepared. The Healthcare Power of Attorney allows a person to make health care decisions for another person, if they are mentally or physically incapacitated. The Living Will allows a person to express their wishes about end-of-life care, if they are terminally ill and unable to express their wishes.

Take precautions to guard against fraud. Seniors are the chief targets of many scams, for two reasons. If they have any kind of cognitive decline, no matter how slight, they are more likely to comply with a person posing as an authority figure. They have a lifetime of assets and are a “rich” target.

An estate planning attorney can work with your parents to assist in preparing an estate plan and advising the family on how to help their parents as they age. Most estate planning attorneys have access to a large network of related service providers.

Reference: ABC7 On Your Side (Sep. 5, 2019) “Six tips for managing an elderly parent’s finances,”

So, You Have to Manage Someone Else’s Money – Now What?

“I have appointed my oldest son as agent using a durable power of attorney form I got on the Internet. I want to be sure he understands his responsibilities, if he has to manage my money and pay my bills when I become ill.”

This sounds like a disaster in the making. A durable power of attorney document must follow the statutory requirements, must delegate proper authority, must consider the timing of when the agent may act and a host of other issues that must be addressed, warns My San Antonio in the article “Guide to managing someone else’s money.” A durable power of attorney document can be so far reaching that a form downloaded from the Internet is asking for major trouble.

Start by speaking with an experienced estate planning attorney to provide proper advice and draft a legally valid document that is appropriate for your situation.

Once a proper durable power of attorney has been drafted, talk with the agent you have selected and with the successor agents you want to name, about their roles and responsibilities. For instance:

When will the agent’s power commence? Depending on the document, it may start immediately, or it may not become active, until the person becomes incapacitated.

If the power is postponed, how will the agent prove that the person has become incapacitated? Will he or she need to go to court?

What is the extent of the agent’s authority? This is very important. Do you want the agent to be able to talk with the IRS about your taxes? With your investment advisor? Will the agent have the power to make gifts on your behalf, and to what extent? May the agent set up a trust for your benefit? Can the agent change beneficiary designations? What about caring for your pets? Can they talk with your lawyer or accountant?

When does the agent’s authority end? Unless the document sets an earlier date, it ends when you revoke it, when you die, when a court appoints a guardian for you, or, if your agent is your spouse, when you divorce.

What does the agent need to report to you? What are your expectations for the agent’s role? Do you want immediate assistance from the agent, or will you continue to sign documents for yourself?

Does the agent know how to avoid personal exposure? If the agent signs a contract for you by signing his or her own name, that contract may be performed by the agent. Legally, that means that the cost of the services provided could be taken out of the agent’s wallet. Does the agent understand how to sign a contract to avoid liability?

All of these questions need to be addressed long before any power of attorney papers are signed. Both you and the agent need to understand the role of a power of attorney. An experienced estate planning attorney will be able to explore all the issues inherent in a durable power of attorney, and make sure that it is the correct document. Contact our office today to schedule your consultation.

Reference: My San Antonio Life (Aug. 26, 2019) “Guide to managing someone else’s money”

Why You—and Everyone—Needs an Estate Plan

“What's going to happen to your assets after you die? Your parents die? Your spouse dies? It's a conversation that's uncomfortable to have, but one that's extremely important.”

At its essence, estate planning is any decision you make concerning your property if you die, or if you become incapacitated. There are a number of things to keep in mind when creating an estate plan, says KTUU in the article “Estate planning dos and don’ts.”

The first task is not what most people think. It’s very basic: making a list of all of your assets and how they are titled. Remember, the estate plan is dealing with the distribution of your assets—so you have to first know what those assets are. If you are old enough to have lived through the sale of several different financial institutions, do you know where your accounts are? Not everyone does!

Next, you need to be clear on how the assets are titled. If they are joint with a spouse, Payable on Death (POD) or Transfer on Death (TOD), jointly with a child, or owned by a trust, they may be treated differently in your estate plan, than if you owned them outright.

Roughly fifty percent of all adults don’t make a plan for their estate. That becomes a huge headache for their loved ones. If you don’t have an estate plan, your property will be distributed according to the laws of your state. What you do or don’t want to have happen to your property won’t matter, and in some instances, your family may be passed over for a long-lost sibling. It’s a risk.

In addition, if you don’t have an estate plan, chances are you haven’t done any tax planning. Some states have inheritance taxes, others have estate taxes, and some have both. Even if your estate’s value doesn’t come anywhere close to the very high federal estate tax level ($11.4 million per person for 2019), your heirs could inherit far less, if state and inheritance taxes take a bite out of the assets.

For a blended family, there are a number of rules in different states that divide your assets. In Alaska, for instance, if some of the children of one spouse are not the children of the other spouse, there is a statutory formula that depends on how many children there are and which of them are living. Different percentages of money are awarded to the children, which becomes complicated.

Another reason to have an estate plan has to do with incapacity. This is perhaps harder to discuss than death for some families. Estate planning includes preparing for what the individual would want to happen, if they were injured or too sick to convey their wishes to others. Decisions about health care treatments and end-of-life care are documented with a Living Will (sometimes called an Advanced Care Directive), so your loved ones are not left wondering what you would have wanted and hoping that they got it right.

One last point about an estate plan: be sure to check beneficiary designations while you are doing your estate plan. If you own retirement accounts, life insurance policies, or other assets with named beneficiaries, the assets will pass directly to the named beneficiary, regardless of the instructions in your will. If you opened an IRA when you had one child and have had other children since then, make sure to include all of those children and the proportion of their shares. There may be tax implications, if only one child receives the assets, and there may also be family fights if assets are not distributed equally.

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 on creating or updating your estate plan today right here.

Reference: KTUU (August 14, 2019) “Estate planning dos and don’ts”

Dementia Can Become a Reality

When the warning signs appear, it is important to push forward in preparing for the aging process.

As the aging process for a family member advances, it is important for other family members to be alert to possible changes in behavior and lapses in judgement, according to the Taunton Gazette in “Preparing for complications associated with aging.”

The warning signs can be hard to spot and the person may even try to hide them. There may also be confusion over regularly-performed tasks, forgetting to pay a bill or missing a meeting.

If that should happen, it is important a conversation becomes part of estate planning or when talking about regular financial planning. Address the potential problems while parents still have mental capacity. As soon as any warning signs are evident, the time frame for preparedness needs to speed up.

When discussing the estate plan, several documents are used to prepare for cognitive impairment. In addition to a last will and testament, the estate plan needs to have a health care power of attorney and a durable power of attorney.

A Health Care Power of Attorney is a legal document that gives caretakers, usually an adult child, and sometimes a trusted friend, the legal ability to speak with health care providers about medical treatment. These documents need to be kept current, so there are no obstacles to their use. Every three to five years, they should be updated, or as circumstances change. Without them, the caretaker won’t be able to have a conversation with a loved one’s doctor regarding any health issues, including mental capacity.

A Durable Power of Attorney allows another person, who is called the “agent,” to handle almost everything in your life. This also needs to be current, since many banks and financial institutions will balk, if they are handed a POA that is more than five years old. Many financial institutions have their own forms. Each institution needs to be asked what forms they will accept, and how “fresh” the POA needs to be.

Cognitive impairment is an important reason for aging adults to rely on trusts. Unlike assets in an individual’s name, assets owned by a trust can be managed by a trustee. If you are the trustee and become mentally incapacitated, your chosen back-up trustee can manage the assets. The trustee needs to be someone you trust with no reservations, who is willing to take on this task.

One of the challenges of incapacity, is transferring the management of a person’s assets and their health care decisions to someone who is not impaired. The aging parent may be very good at hiding their disability, and they can often mislead family members for extended periods of time.

One unusual and creative idea: create a “disability board of directors”—a group of family members, friends, or beneficiaries who decide if the loved one needs help. This is far easier than relying on doctors to declare incompetency or needing to apply to the court for guardianship.

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: Taunton Gazette (July 12, 2019) “Preparing for complications associated with aging,”

Worried about Long-Term Care? It Is a Reasonable Concern

Can your spouse or your adult children care for you? Maybe.

Many Americans become concerned about needing help with long-term healthcare in their later years, either from their family or from medical professionals. They are right to be concerned, according to Market Watch in “This is how much long-term care could cost you, and don’t expect Medicare to help.”

Here are facts to consider:

• More than a third of people will spend some time in a nursing home, where the median annual cost of a private room is well over $100,000, says Genworth’s 2018 Cost of Care Survey. Don’t expect those numbers to go down.
• Four of ten people will opt for paid care at home, and the median annual cost of a home health aide is more than $50,000.
• Half of people over 65 will eventually need some kind of long-term care costs, and about 15% of those will incur more than $250,000 in costs, according to a joint study conducted by Vanguard Research and Mercer Health and Benefits.

Medicare and even private health insurance don’t cover what are considered “custodial” expenses. That’s going to quickly wipe out the median retirement savings of most people: $126,000. With savings completely exhausted, people will find themselves qualifying for Medicaid, a government health program for the indigent that pays for about half of all nursing home and custodial care.

Those who live alone, have a chronic condition or are in poor health have a greater chance of needing long-term care. Women in particular are at risk, as they tend to outlive their husbands and may not have anyone available to provide them with unpaid care. If a husband’s illness wipes out the couple’s savings, the surviving spouse is at risk of spending their last years living on nothing but a Social Security benefit.

The best hedge against long-term care costs is to purchase a long-term care insurance policy, if you are eligible to purchase one. Wait too long, and you may not be able. One woman persuaded her parents to purchase a long-term insurance policy when her father was 68 and her mother was 54. Five years into the policy, her father was diagnosed with Parkinson’s disease. The policy covered almost the entire cost of his 24-hour care in the final months of his life. Her mother lived to 94, so the investment in the policy was well worth it.

Everyone approaching retirement needs a plan for long-term care costs. That may be purchasing long-term care insurance or purchasing a hybrid life insurance product with long-term care benefits. If there is no insurance and one member of the couple is still alive, getting a reverse mortgage may be an option.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and can include long-term health care insurance. 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: Market Watch (July 19, 2019) “This is how much long-term care could cost you, and don’t expect Medicare to help.”

Living Trusts and Living Wills are Good Options for Estate Plan

Medical Advance Directives can direct how you want your health care provided.

There are important legal documents such as a Medical Advance Directive that involve health care and should be considered for your estate plan, according to The Villager in “About the Law.”

The Medical Advance Directive often refers to a Living Will, but the category also includes medical durable powers of attorney, cardiopulmonary resuscitation (CPR) directives, Do Not Resuscitate (DNR) orders, Medical Orders for Scope of Treatment (MOST) and other directives regarding your medical care in the event you have a medical crisis, a terminal medical condition and just before or after your passing.

In some states, a Living Will is known as an Advanced Directive for Medical/Surgical Treatment. This document tells medical professionals how you want to be treated, if you are suffering from a terminal condition that is neither curable nor reversible, or if you are in a coma, also known as a “persistent vegetative state” and cannot speak for yourself. It’s referred to more commonly as a Living Will and is signed with the same type of formality as a Last Will and Testament. Like your will, it must be signed in front of two witnesses and it must be notarized.

The Living Will is used for two situations. One is a terminal condition, where the use of life-saving procedures will only postpone death, but not promote any healing that would lead to a recovery. The second is in a persistent vegetative state, which must be determined by medical professionals. There are three choices for the family: one is to forgo life-sustaining treatment and let the person die. The second is to accept life-sustaining treatment, but only for a limited period of time. Often this is to allow family members to gather to say their farewells. The third is to continue life-sustaining treatment.

A person may express their wishes for their care and also give permission to certain persons to talk with their doctor. This is made necessary, due to the HIPAA act. Otherwise, the doctor would legally not be permitted to discuss the patient’s care with unauthorized people.

As long as you are able to make your own medical decisions, you can determine what treatments to receive, or which treatments you do not wish to receive. The goal of the Living Will is to allow you to express your wishes, if you have lost the ability to communicate.

Other estate planning documents that you’ll need are a will, to distribute your property, a financial or general power of attorney, so that someone you name can make decisions and take actions on your financial affairs and, depending upon your situation, a trust.

Because the laws governing living wills and estate planning are set by your state, it is a good idea to speak with an estate planning attorney in your community. 

Reference: The Village (July 3, 2019) “About the Law”