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Why is it so important to have an Advance Health Care Directive?

An Advance Health Care Directive, often called a “living will” in the news, allows you to make your written health care decisions known in advance, if for any reason you are unable to communicate your wishes to your doctor. An Advance Health Care Directive may also be a durable power of attorney for health care in which you appoint a family member or friend to make health care decisions on your behalf when you cannot do so. This person is called your “agent” or “attorney-in-fact.” Your doctor and your agent are required by law to follow your lawful instructions.

Keep in mind that your doctor has the legal authority to treat you in an emergency situation even if you cannot communicate your wishes. However, you may not receive the treatment you would have preferred had you been able to make the decision yourself. A valid Advance Health Care Directive makes your decision in advance and also prevents the need to go into Court if there is disagreement about your health care.

What is a Durable Power of Attorney for Property Management?

A durable power of attorney for property management authorizes and appoints a property manager to manage your property—such as bank accounts, investments, and home—at any time that you are unable to manage your property yourself. This property manager is called an “agent” or “attorney-in-fact.”

Your durable power of attorney can be written to require that one or two doctors must certify that you are substantially unable to manage your financial affairs before your agent can take over the management of your property or it can be written to take effect immediately. If your durable power of attorney takes effect immediately, it means that either you or your property manager could manage your assets at any time.

What is a Living Trust?

A living trust is a written agreement, a contract that you may amend or change or even revoke during your lifetime. It provides a property manager, called a trustee, to manage your personal and real property placed into the trust. Initially you are the trustee or property manager. In your trust agreement, you also appoint successor trustees to act on your behalf if you cannot manage your own property for any reason. Your successor trustee has a special legal responsibility, called a fiduciary duty, to manage your assets for your benefit and to report and account to you. For example, your trustee would be able to pay your bills, deposit checks into your bank accounts, manage your investments, arrange for repairs to your home, and sell property (if necessary) for your care.

When a person passes away, the successor trustee now represents the remainder beneficiaries of the trust agreement and has the same special legal responsibility to act on their behalf. The trustee must ordinarily provide periodic status reports and yearly accountings to the trust beneficiaries. The trustee may also have a duty under the trust agreement to manage a children's trust until the child or children reach an age you have specified in your trust agreement. A trust is normally administered with the requirement of a state probate court proceeding.

What are Assets?

Assets and property are generally interchangeable terms. Assets that can be quickly converted into cash are considered “liquid assets” and include bank accounts, stocks, bonds, mutual funds, cash, certificates of deposits (CDs), and other monetary instruments. The term assets also includes real estate such as your home, promissory notes owed to you by a third person, tangible personal property such as the furniture and furnishings in your home, collectibles such as an art or coin collection, an individual or family business, and other property. In California, the title to an asset may be held as the separate property of an individual or jointly owned as community property, in joint tenancy, or as tenants in common.

What is a Probate?

The probate of a Last Will and Testament refers to a state court proceeding to administer a deceased person's estate. It normally involves procedures such as the inventory and appraisal of the estate assets, the payment of the decedent's last debts, the payment of the decedent's last taxes, the possible sale of real and/or personal property assets, and the final distribution and transfer of the estate assets to the beneficiaries of the deceased person's Last Will and Testament by Court order.