Whether you live in Orange County or somewhere else in California, many of us believe that estate planning is simply instructions on how to distribute your assets when you pass away. From that perspective, estate planning is often viewed as something one does only after they have acquired substantial assets. While one major benefit of estate planning is to provide clarity and security for your family and friends when you are gone, there are many benefits for you as well.
However, the reality is proper estate planning can do much more than shelter assets. Indeed, the core of estate planning is more about who you love than what or how much you own.
Preparing and Planning for Life
Life can give us surprises, both good and bad. Estate planning can help you be prepared for some unfortunate surprises in life. This is because proper estate planning includes planning for you and your care in the event you become incapacitated.
Do not be mistaken, incapacity does not just mean you are permanently in a coma. There are a number of different situations that might arise that lead to possible incapacity (or an inability to care for yourself or make financial decisions) such as an accident or sudden illness or something more ongoing and permanent like an onset of dementia or a traumatic brain injury.
Circumstances leading to incapacity can happen to anyone regardless of age. Of course, major accidents can happen to anyone at anytime. While dementia is often associated with aging, the medical data shows that men and women can suffer from an early onset of Alzheimer’s Disease and Parkinson’s Disease before age 65. While we may think we are healthy, no one is truly immune to ailments, disease, or unexplained episodes such as sudden cardiac arrest, stroke, or brain aneurism. As we remind clients, Terri Schiavo was only 26-years old when a sudden cardio-respiratory arrest altered the course of her life forever.
Essential Estate Planning Tools Not to Overlook
One tool used to address your care in the event of incapacity is a financial power of attorney. This legal document allows you appoint someone to manage your finances and property on your behalf. A financial power of attorney can go into effect as soon as the document is signed, allowing someone to act on your behalf immediately, even if you are not incapacitated. Alternatively, power of attorney can be “springing,” only going into effect in the event you become incapacitated (as determined by a physician). You can determine which type of financial power of attorney fits your unique situation.
Another estate planning tool that can protect you in a time of need is a medical durable power of attorney. Also referred to as an advance healthcare directive in California, this legal document lets you name a trusted person to make medical decisions on your behalf when you are unable to do so yourself. It also gives you an opportunity to lay out some of your wishes regarding your medical care.
A document called a living will can also bring peace of mind to both you and your loved ones because it provides instructions on what type of medical and personal care you would want if you couldn’t make the decisions yourself. Of course, a living will will certainly contemplates and includes your end-of-life medical care decisions. However, more comprehensive advance care planning is recommended. For example, if you were incapacitated due to a form of dementia and later contracted cancer, would you want to treat the cancer and if so, how aggressively? In California and a number of other states, you can include these instructions in your advance healthcare directive, along with pairing it with a separate legal document called a POLST (a Physicians Order for Life Sustaining Treatment) containing medical orders for emergency personnel.
Finally, the use of a revocable living trust can be beneficial in the event you become incapacitated. When you are healthy and have capacity, you are typically the trustee of a revocable living trust, able to manage the assets and use them for your benefit. However, the trust instrument also allows you to name a successor trustee who will step into your shoes to manage the assets when you are no longer able to act due to incapacity or disability. Successor trustees also have a duty to continue to use the assets for your benefit.
Plan Ahead for Peace of Mind
Having a properly drafted estate plan that includes the documents described above can help protect you during your lifetime. Failure to have these documents in place may result in your loved ones going before the court to have someone appointed to make financial and medical decisions for you. This process, often called “living probate,” is lengthy, expensive, and stressful – not to mention part of the public record – during a difficult time when your loved ones are already dealing with the incapacity of someone they care about – you!
If you have questions about any of these legal documents or how to protect yourself through estate planning, give us a call to learn about your options.
Kevin Snyder is a husband, father, and an Orange County estate planning attorney and elder law attorney at Snyder Law, PC in Irvine, California. He’s all about family and passionate about estate planning, elder law, veterans and teaching others, from Orange County, Los Angeles County, San Diego County to San Francisco, how to protect what matters most: family, dignity, and legacy.