Sebastopol Trusts & Estates Law Blog

An Advanced Health Care Directive appoints an agent to make your health care decisions in case of incapacity, and tells your doctors and caregivers in precise legal form your desires regarding life prolonging treatment, pain management, organ donation, and personal care. By considering your options early, you can ensure the quality of life that is important to you and avoid having your family “guess” your wishes or having to make critical medical care decisions for you under stress or in emotional turmoil.

The current Advanced Health Care Directive replaced two prior forms called the Durable Power of Attorney for Health Care and the Directive to Physicians (also called a “Living Will”). If you have one of these older forms they are still valid, but it would probably be a good idea to replace them with the new format.

I recommend giving a copy of your Advanced Health Care Directive to the person you appoint as your health care agent, to your doctors, and to any hospital when you register.

I generally prepare an updated Advanced Health Care Directive as part of any estate plan. However, you can also do your own form. Information is available at the California Attorney General’s website. You can also get a form from the California Medical Association and many doctors offices and hospitals. Kaiser has an excellent form available for its members. Just be sure your form is a recent version and California specific.

A Certified Specialist is much more than an attorney who just practices in a particular area of law…

• A Certified Specialist must have taken and passed a written examination.

• A Certified Specialist must have demonstrated a high level of experience in the specialty field.

• A Certified Specialist must have fulfilled ongoing educational requirements.

• A Certified Specialist must have been favorably evaluated by other attorneys and judges familiar with his work.

• A Certified Specialist is also required to undergo an ongoing recertification process, which includes educational requirements, experience, and peer review.

• There are only 14 attorneys certified as specialists in Estate Planning, Trust & Probate Law practicing in Sonoma County.

Click here to learn more about Certified Specialists from the State Bar of California.

The biggest mistake I see people make with their Living Trust is not keeping it properly funded. In other words, the assets that are supposed to be in the trust (to avoid probate) are not in fact in the trust.

I usually describe a trust as a bucket. This bucket, the trust, is an independent legal entity, akin to a corporation, that survives the person who creates it. Assets owned by the trust, or in other words placed in the bucket, generally do not need to be probated upon death. However, if an asset is not placed in the bucket, it could require probate when a person dies.

“Trust funding” is the process of placing assets in the bucket. This is accomplished by re-titling” one’s property and accounts into the name of the trust. For example, to transfer a parcel of California real estate into a trust, one generally executes and records a Deed transferring title to the trustee of the trust. Similarly, a bank account is placed in a trust by revising the bank signature card to show the trustee of the trust as the owner of the account.

Note that listing an asset on a schedule of trust assets or similar document may be evidence that one intends the asset to be in the trust, but by itself does not serve to transfer the asset. The deed, signature card, account registration, stock registration, etc. must be changed to show the trust as the owner of the particular asset.

A Living Trust is an excellent estate planning tool. However, I have seen many estate plans fail due to people simply not following through to ensure that their trust is properly funded, and that it remains funded over time. This common error can lead to costly and time consuming probate proceedings, thus defeating one of the main purposes of preparing a Living Trust.

-Ken