What is a Conservatorship?

     A conservatorship happens when a petition is filed with the Court for one to be established because someone can no longer take care of his or her life.  This can be a conservatorship of the person [personal care issues] or of the “estate” [meaning finances] or both.  The Court appoints a person to handle and be responsible for another person’s financial and/or daily living affairs and needs. A conservatorship may be necessary when a person in need cannot handle his/her affairs and has not nominated another person to help through a trust or power of attorney document, when the person nominated is not suitable, or in the case of physical or financial abuse.        If you are looking at a conservatorship as an option, the planning has failed.  You can totally avoid having to go to Court, having to make all your personal financial information public, having to account annually, by setting this up during your life.  With powers of attorney for asset management and health care, someone is nominated in advance to step in for you if you can no longer handle your own decisions.  A Trust can also set out your personal care directions. You list a series of people you nominate so that if there is someone who cannot do the work [due to death or unavailability], the next in line can step in.  This is also the case if there is elder abuse.  The next in line can take steps to replace the abuser and protect the elder.  A conservatorship is a valuable tool.  You can, however, avoid having to go...

What Exactly is Proposition 13 and How Does it Still Relate to Estate Planning?

     Get out your disco records and leisure suits, we are going back in time.  If you don’t know what those are, this article is for you.  Way back in 1978, the voters in California eagerly approved Proposition 13, adding Article XIII A to the California Constitution. Article XIII A generally limits the amount of ad valorem tax to a maximum of 1 percent of the full cash value of the real property.  So what does this mean?  Ad valorem tax is a tax based on the assessed value of real estate or personal property. Property ad valorem taxes are the major source of revenue for state and municipal governments.  Municipal property ad valorem taxes are also known as “property taxes”.          For purposes of the Prop 13 limitation, the Constitution defines “full cash value” to mean a county assessor’s valuation of real property as shown on the 1975-76 tax bill, or thereafter, the appraised value of that real property when purchased, newly constructed, or a change in ownership has occurred. As long as the property has the same owner, its assessed value generally cannot increase by more than 2% per year.  This is true even if the property’s market value is increasing at a faster rate. As a result, the market value of many properties is often higher than the assessed value.  In many states, property is reassessed each and every year so the tax keeps up with the value of the property.  We have Prop 13 to thank for our not having annual reassessments.        When it was passed in 1978,...

Great News for the Terminally ill

      Governor Brown signed the End of Life Option Act today which authorizes “an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal disease, as defined, to make a request for a drug prescribed …. for the purpose of ending his or her life.”  The full text can be found: here Governor’s signing message can be found: here It says: OCT 5 2015To the Members of the California State Assembly: ABx2 15 is not an ordinary bill because it deals with life and death. The crux of the matter is whether the State of California should continue to make it a crime for a dying person to end his life, no matter how great his pain or suffering.   I have carefully read the thoughtful opposition materials presented by a number ofdoctors, religious leaders and those who champion disability rights. I have considered the theological and religious perspectives that any deliberate shortening of one’s life is sinful. I have also read the letters of those who support the bill, including heartfelt pleas from Brittany Maynard’s family and Archbishop Desmond Tutu. In addition, I have discussed this matter with a Catholic Bishop, two of my own doctors and former classmates and friends who take varied, contradictory and nuanced positions. In the end, I was left to reflect on what I would want in the face of my own death.I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort...

Advance Directives: The HAVES and the HAVE NOTS

• You HAVE someone in place if you can no longer make your own choices. • You HAVE NOT lost control over your health care choices as long as you can make them.   • You HAVE the ability to give a lot of detail on the kinds of treatments you want. • You HAVE NOT elected  “no treatment” simply by completing an Advance Directive.   • You HAVE great flexibility to modify or rewrite the information until you like it. • You HAVE NOT been stuck with the options on the form.   • You HAVE the option to have an attorney help.  • You do NOT HAVE to hire an attorney draft this for you; you can do it.   • You HAVE the right to say you do not want any treatment under some circumstances. • You do NOT HAVE to accept treatment just because it is available.   • You HAVE the ability to name anyone, even friends over family members. • You do NOT HAVE to let people you do not get along with make your health care choices just because they are family.   • You HAVE the ability to do this anytime you want but every person needs one, not just older or sick people. • You do NOT HAVE to wait for illness or injury to do this.   None of us wants to be the next Terri Schiavo with family fighting over what we would have wanted.  Make it clear what you do want and what you do not want.  The more clarity you give, the less likely there will...

​​IS THERE A “BEST PLACE” TO KEEP ESTATE PLANNING DOCUMENTS?

At Home or Office: Most people will keep their documents at home or in their offices. The most important thing is to keep them SAFE so they will not get lost, stolen or damaged.  You don’t want to be so clever in keeping the documents safe that no one can find them.  You don’t want them where someone can walk off with your documents, especially a disgruntled or curious heir.  You probably don’t want to store them where there is a chance of fire, water or other damage either.   A personal safe is a great idea but be sure that 1) it is not so small it can be stolen, or 2) the combination can be found by your Trustee.  If you do not have a personal safe, you can store them high and out of the way but be sure your family knows where it is store.  I tell people to take a selfie of themselves holding their plan documents in front of the place they will be stored.  You can then send that image to your family so they know where to look and what to look for as well.   In a Safe Deposit Box: This is a pretty safe place, right?  It is in a bank after all.  This can be a great location.  During your life, in California, you can list access to your Safe Deposit Box on your power of attorney for asset management so that your Attorney-in-Fact can access the Box during your life.  Some of these powers of attorney, though, are only on your incapacity and that may never happen. ...

​​WHO YA GONNA CALL? [RESOURCES FOR ELDERS]

This is a list of the kind of information many seniors need.  I hope you find it useful.   To report ELDER ABUSE: Local Adult Protective Services:  1-800-510-2020 http://www.cdss.ca.gov/agedblinddisabled/PG2300.htm   Long Term Care Ombudsman:  1-800-231-4024 (licensed facilities) If you are in immediate danger:  Emergency 911   For information about SENIOR SERVICES: California Senior Gateway: www.seniors.ca.gov   California Department of Aging: 1-800 -510-2020  www.aging.ca.gov    National Eldercare Locator Service: 1-800-677-1116 www.eldercare.gov/Eldercare.NET/Public/Index.aspx     For LEGAL ASSISTANCE: State Bar of California: 1-866-442 -2529 (local referrals) http://www.calbar.ca.gov/Public.aspx  Senior Legal Hotline: 1-800-222-1753 Attorney Complaints: 1-800-843-9053   For help dealing with DOMESTIC VIOLENCE: www.courts.ca.gov/selfhelp-domesticviolence.htm  National Domestic Violence Hotline: 1-800-799-7233 (local referrals) California’s “Safe at Home” Program: 1-877-322 -5227   To check CONTRACTORS’ LICENSE: Contractors State License Board: 1-800-321-2752 https://www2.cslb.ca.gov/OnlineServices/CheckLicenseII/CheckLicense.aspx   For assistance with SOCIAL SECURITY: 1-800-772- 1213 OR  www.socialsecurity.gov     For information on HEALTH INSURANCE OPTIONS: California Department of Insurance: 1-800 -927-HELP (4357)  www.insurance.ca.gov/0150-seniors/0300healthplans/  OR www.cahealthadvocates.org/HICAP/index.html  1-800-434-0222 (HICAP-free Medicare help) 1-800-633-4227 (Medicare) 1-888-466-2219 (HMOs)   For Information on CARE FACILITIES: California Advocates for Nursing Home Reform (CANHR) www.canhr.org  OR 1-800-474-1116 (nursing homes, residential care facilities) California Registry: 1-800-777-7575 (various living arrangements) www.calregistry.com      For VETERANS’ SERVICES: CA Department of Veterans’ Affairs https://www.calvet.ca.gov/veteran-services-benefits  U.S. Department of Veterans Affairs: 1-800-827-1000 www.va.gov   To investigate before you INVEST: California Department of Corporations Seniors Against Investment Fraud (SAIF) 1-866 -ASK-CORP (275-2677) http://www.dbo.ca.gov/Consumers/education_outreach/saif/default.asp   California Department of Consumer Affairs: 1-800-952-5210 (info, complaints, license checks) http://www.dca.ca.gov/consumer/seniors/index.shtml     To stop MARKETING CALLS, MAIL AND E-MAIL: www.donotcall.gov  1-888-382-1222 (“do not call” registry)   To order FREE CREDIT REPORTS (annually): 1-877-322-8228 www.annualcreditreport.com    I hope this helps!   Elizabeth...

What Is the Big Deal About the Probate Process?

We hear all the time about how we should avoid probate.  How does it work?  Simply stated, probate is a court supervised process where: 1. The decedent’s assets are collected and then identified; 2. Any debts, taxes or expenses paid, and; 3. What is left, “the inheritance”, is either distributed outright to loved ones or is administered and distributed to them through a testamentary trust [meaning trust set up after you die].   The Gathering: Hopefully, the records are all in a handy dandy binder or file folder and there is no sleuthing required.  If it is all in shoe boxes, then that is the method of gathering of data that will be used.  In most events, the mail [electronic or snail mail] will also bring important information so the Executor should be checking email and also getting all the mail via a change of address card with the post office.  This will result in knowing what the assets and liabilities are.   The Paying: After we now what the liabilities are, we need to use the assets of the estate to pay the liabilities.  Notice to Creditors is given to start a four month period, currently and in California, within which general creditors must present their claim or they are forever barred.  Known creditors are also given notice but directly.  Notice to Creditors is a good thing because it closes off the time for future claims and protects the beneficiaries from creditors trying to follow the assets for payment.   The Distributing: Depending on whether there is a will or not, the result may change.  If there is...

Powers of Attorney: Do they Last Forever?

Every estate plan I do in California will have two types of powers of attorney, one for health care and one for finances.     A power of attorney for health care decisions is called an “Advance Directive” and they allow you to  appoint a trusted person to make medical decisions on your behalf in case either illness or injury make you unable to choose your health care options.  You may be unconscious or otherwise incapacitated.    Powers of attorney for finances appoint someone else to make financial decisions or execute transactions on your behalf under certain circumstances. Those circumstances might be that you are our of the country on a vacation or work related trip or you are incapacitated.  They may be limited in duration for a vacation while for incapacitation, they may last a very long time.  For them to last through any incapacity, they need to be “durable”, meaning intended to last during any incapacity.   So you have done these, now what?  Can you sit back and relax, knowing you are set for all time?  As they say, “not so much”.  Powers of attorney should be reviewed periodically.  There are many reasons why you might want to consider executing new ones:   • Your wishes may have changed. • The agents you chose to act for you may have died or otherwise become unavailable.  • You may no longer trust a person you chose. • If you designated your spouse as your agent and you later divorce. • If you’ve since moved to another state, your powers of attorney may no longer work the same...

ARE YOU LEGALLY RESPONSIBLE TO PAY YOUR PARENT’S DEBT?

  “Filial support” means that adult children are legally obligated to financially support their parents. California’s filial support laws date back to 1872. It is currently in California Family Code sections 4400-4405. In 1973, the California Supreme Court upheld Swoap v. Superior Court of Sacramento that a revised 1971 statute provided a rational, enforceable basis for adult children to reimburse the State for aid granted to their parents.     On the up side, Family Code Section 4400 is still on the books but it is currently being undermined by California Welfare and Institutions Code 12350 which says   “No relative shall be held legally liable to support or to contribute to the support of any applicant for or recipient of aid under this chapter.”   It further states “No county or city and county or officer or employee thereof shall threaten any such relative with any legal action against him by or in behalf of the county or city and county or with any penalty whatsoever.”   Keep in mind, this code only applies to the government, not nursing home corporations or companies.  There is nothing precluding a nursing home corporation or company from using Family Code Section 4400.  Consider too that with the budget cuts and the deficit of funds, how long will it be until California amends the W&I Section?  Then, how long after will you be responsible to pay your parent’s debt?   Be sure your parents have done their estate planning!  Be sure you have done your estate planning so your own children are not looking at a potential liability for you.  Take these...
Intestate Succession hazards

Intestate Succession hazards

  INTESTATE SUCCESSION? WHAT IS THAT?!? Dealing with the death of a loved one is often traumatic at worst, emotionally draining at best. This process is, however, exponentially more difficult when a person dies without a will, or “intestate”. Real property is particularly difficult to distribute without knowing the intent of the deceased. We may think we know, but if the deceased did not write it down, it will pass by the laws of “Intestate Succession” which means the State of California will instead tell the family how the property is to be divided. The more complex families are, the more complications there can be. Consider the following:     If you die with:Then here is what will happen: • parents but no children, spouse, or siblings• parents inherit everything • siblings but no children, spouse, or parents• siblings inherit everything • spouse but no children, parents, or siblings• spouse inherits everything • children but no spouse, parents, or siblings• children inherit everything • a spouse and child[ren]• spouse inherits all of your community property and 1/2 or 1/3 of your separate property, ½ if one child and 1/3 if more than one child AND • children inherit 1/2 or 2/3 of your separate property • a spouse and parents, no children• spouse inherits all of your community property and 1/2 of your separate property AND • parents inherit 1/2 of your separate property • a spouse and siblings, but no parents or children• spouse inherits all of your community property and 1/2 of your separate property AND • siblings inherit 1/2 of your separate property The Spouse’s Share...
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