II. Your Power of Attorney for Property Management
Your power of attorney for property management allows your named Agent to make financial decisions about matters that the Trust does not control if you become incapacitated. Examples of such matters include retirement plans, social security benefits, Medicare/Medicaid, dealings with the IRS (such as the signing of your tax returns), your accounts which are not titled in your Trust, performance on your individual contracts, the DMV, and any other matter not controlled by the Trust. You may designate that this document becomes effective immediately as to your chosen Agent, or you may designate that this document becomes effective only upon your incapacity. A person is considered “incapacitated” if that person is under a legal disability or is unable to give prompt and intelligent consideration to financial and administrative matters or make sound decisions about his or her own financial affairs. A determination of incapacity is generally made by either (1) two licensed physicians who certify in writing that such person is under a legal disability, or (2) by an order of a court appointing a conservator for that person. Although your financial power of attorney “endures” your incapacity, this document dies with you; it is no longer effective and cannot be used after your death. This is when your Will and Trust come to light.
III. Your Advance Health Care Directive
An Advance Health Care Directive gives your named Agent the power to make decisions about your health and well-being, such as: electing medical treatment and procedures, hiring your caregivers, selecting caretaker facilities for you, “life and death” decisions about terminating life support, decisions about organ donation, burial or cremation. This document is used in the event you cannot communicate your wishes on your own, for example, if you are incapacitated, unconscious, heavily medicated, or on life support. Most recently, “remote authorization” provisions are added in this document to allow your Agent to communicate with your medical providers remotely (via Telehealth, Zoom) and to sign documents electronically in the event the Agent is unable to come face to face with the medical provider.
This is an extremely important document that literally places your life in the hands of your chosen Agent. For that reason, it is very important to carefully choose this individual. It should be someone you Trust implicitly with your life, and who has the fortitude to do that which you wish should be done.
This person will not only make medical decisions for you but will also be given access to your medical records, which are otherwise protected under federal law known as HIPAA (Healthcare Insurance Portability and Accountability Act). To facilitate this process, a HIPAA Release is included in this document, which will permit your agent to obtain your medical records -and will release the holder of records from the liability of doing so. This document is also compliant with the California equivalent of HIPAA, which is the California Confidentiality of Medical Information Act ("CMIA").
IV. Your Pour-Over Will
Your Pour-Over Will designates your Trust as the sole Beneficiary of your Probate Estate. As such, it “pours” or “wills” to your Trust any odds and ends that have been inadvertently left outside of your Trust at the time of your death. Because almost all your assets should be titled into your Trust, the Will serves as a “safety net” that “catches” any assets that might otherwise trigger Probate administration. Such property is then distributed under the terms of the Trust.
And, if you have minor children, the Will names a Guardian for your minor children.
There is no “do-over” after one is deceased. For this reason, it is even more important to know how Estate planning relates to you, your family, and those who depend on you, so that you and your family can avoid the ultimate cost — regret.