Feb 28, 2018
by Debra Newby, Newby Law
DEAR READERS: Do you have a legal question on your mind? If so, please email me at firstname.lastname@example.org. Your name will remain confidential. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.
Last month we discussed the basic structure and workings of a Durable Power of Attorney (“DPOA”), prompted by a question from a reader who had difficulty with a local bank when she tried to manage her Uncle’s financial affairs. [Check out the February 2018 article at sonomacountygazette.com] Important stuff.
We all tend to stall vital decisions—like how to manage our affairs as we age, what measures we want taken by medical personnel if we are sick, and even who or what will inherit the “fortunes” that we have accumulated when we leave this Earth. Oddly, there is still a “stigma” about preparing or even talking about the inevitable—our tendency to age and in some cases weaken. To ignore the inevitable is, well, simply short-sighted. Ignoring necessary action does not make the task disappear. Stalling will not freeze all momentum.
It is this simple. We all are going to age, perhaps weaken, and eventually die. That spectrum is unique to each of us. Some of us may be strong, able and healthy up to the tender age of 93 when we die in our sleep, dreaming of climbing Mt. Everest. Others may develop an unshakeable illness, that renders us unable to make financial or health care decisions. So look at it this way—our path is unique and customized for us, but we all end up on the same boat at the end. Wouldn’t you rather prepare and pack for the journey now, when you are able and clear-headed…or wait until you are on the boat, without the proverbial life-vest?
Enough lecturing. Let’s get down to business. Another “tool” you will want in your toolbox besides the DPOA is an Advance Health Care Directive. This document allows you to name another individual (think spouse, family member, trusted friend) to make health care decisions for you if you are unable. There are free forms all over the web. You do not need an attorney. If you are Kaiser member, ask next time you are on campus for a sample Health Care Directive. They will be “tickled pink” to give you a blank form. Yes, it may be awkward to complete, as you have to think about organ transplants, the degree and amount of life-saving measures you want the hospital or doctor(s) to take, and in essence your definition of “life”.
Now that you have your DPOA and Advance Care Directive in place, what’s next? A Will and a Trust (two separate legal documents) are absolutely vital, especially if you have children and/or real estate. If you procrastinate and do nothing, you actually still have an estate plan—it is just that you’ve delegated the distribution of everything you own to the State of California to distribute to your “statutory heirs”. In legalese, you have died “intestate”, meaning that your assets will be chewed up in attorney fees, filing fees, and court fees as the probate court reviews and distributes your assets to your family and relatives, some of whom, to be frank, you may not like. Plus, that special friend or neighbor who has been by your side all those years will inherit nothing.
Why would anyone work so hard to gather and enjoy assets such as banking accounts, pension accounts, real estate, vehicles, art, jewelry, hang-gliders, kayaks, or whatever “toys” you have collected over the years…only to have it slowly diluted in a drawn-out probate proceeding?
Get Thee to a respectful and trustworthy estate planning attorney NOW. Ask your friends and neighbors who they trust. My favorite estate planning attorneys (in no particular order) are Bridget MacKay in Petaluma (707-769-9975);Roberta Simi in Santa Rosa, (707-578-2350); and Brian Rondon in Santa Rosa (707-541-7250).
As Benjamin Franklin quipped, “You may delay, but time will not, and lost time is never found again.”
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