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A man, granted power of attorney, signs a legal document.

How To Get Power Of Attorney In California

January 22, 2020/in Estate Planning /by Michael Lonich

There are many reasons residents of California seek out power of attorney(POA). If you have an older parent with dementia who struggles to act on their own, POA is a way to assure decisions that need to be made are made soundly. If you are being deployed, granting someone power of attorney can allow them to act for you in necessary areas while you are away. If you own a property and reside far away from it, you can grant POA so that someone who lives closer can manage your property for you. These are just a few instances in which the power of attorney becomes valuable. Most likely, you know why you need POA. The question is, how do you get it?

What Is Power Of Attorney?

POA is a legal document through which a person (aka agent) is appointed to make medical and financial decisions on a person’s (principal’s) behalf.

This seems simple in theory, but there are several types of POA, and that’s where things get a little confusing. When you add the different laws per state, things become very murky for those seeking legal help. Lonich Patton Ehrlich Policastri, a legal firm in San Jose, CA, can help clear things up for California residents by breaking down the types of POA.

What Are The Different Versions Of Power Of Attorney?

There are a few different types of POA. To get started, you need to determine which type is right for your situation.

Durable – This document allows you to choose someone to act for you financially and medically, and grants decision making power regardless of future incapacitation. The incapacitation addendum for this specific document means that even if the principal becomes incapacitated, the document will remain valid.

An alternate version of this is the Springing POA in which the document only becomes active when the person becomes incapacitated.

General – This is known as the financial power of attorney as it grants no power over medical decision making. This also differs from the durable POA because it has no incapacitation addendum. This means if the principal becomes incapacitated, the document will become void. This document is effective immediately.

A person with general power of attorney counts paper money

Limited – This document allows you to choose someone to act in your place for a specific or single duty. Once the duty is complete, the form becomes void. An example of this would be for a real estate transaction that is taking place. POA is only needed on a temporary basis for a very narrow and specific instance.

Medical – This is also known as a Health Care POA. This grants decision making power for all medical reasons. It also has an incapacitation addendum. It only grants power if the principal is unable to make decisions for themself.

What Happens Next?

So, you’ve determined which document you need. What’s next? There are a couple of legal requirements to complete a power of attorney.

The agent must be 18 years old at least and mentally sound. They should also be someone you trust and can rely on to act in your best interests.

Many people wonder if the document needs to be notarized or witnessed. Based on California law, it can be either.

You can notarize a document for little cost. Some USPS locations now have notaries onsite. While it isn’t required, it is recommended to have real estate matters notarized for solid records.

Someone setting up power of attorney has a legal document notarized

Having a document witnessed can be a little more intricate. You must have 2 independent witnesses that are adults and mentally sound. The named agent of the POA cannot be a witness. For medical POAs, a healthcare provider or employee of the healthcare provider cannot be a witness either. Once you have your two witnesses, you must sign the document in the presence of the witnesses or you must go through a process known as acknowledgment. This can be as simple as signing the document and calling the witnesses over to say “I signed this. This is my signature.”

If you live in the greater Bay area, such as San Jose, and are in need of legal advice on POA, contact Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations and can help you choose the right document for your situation. Set up your consultation here.

A Trust administrator is responsible for handling money and the estate

What Does A Trust Administrator Do?

January 15, 2020/2 Comments/in Estate Planning /by Michael Lonich

There are a lot of responsibilities when it comes to being a trust administrator. Most likely, if you’ve found yourself in this position, you didn’t know much – if anything – about trust administration beforehand. That can leave you with a lot of questions. The lawyers at Lonich Patton Ehrlich Policastri can shed light on your responsibilities and guide you through the administration process.

To start with, what does a trust administrator do?

Trust administrators have a huge responsibility and little room for mistakes. This can be overwhelming. It’s good to know what kinds of duties you will be responsible for going into the process.

A trust administrator goes over the division of assets and the estate laid out on the trust

Valuation Of Assets One of the administrator’s fiduciary duties is to assess the assets in the trust and value them. Valuation allows one to determine the total worth of the trust.

Deducting Liabilities Once the assets worth has been determined, it is the trust administrator job to deduct all liabilities from the total worth. Liabilities include all costs and expenses of the trust.

Record Keeping The administrator must keep track of the trust funds, taxes paid, and all correspondence. These records must be completely transparent as beneficiaries can view them at any point, but most commonly every six months or on an annual basis.

Filing Income Tax Returns The admin is required to file income tax returns yearly for the trust. This is because trust assets are not able to be distributed tax free. However, there can be deductions. Any taxes due are paid directly out of the trust. Go here for some tips on fiduciary tax returns.

Maintaining And Monitoring Assets It is the duty of the admin to maintain the value of the trust and the assets within it. You need to keep track of spending and costs to try and maintain the worth of the trust over time. This requires you to keep track of and audit any change within the trust. This ties back into record keeping.

Updating/Informing Beneficiaries Beneficiaries must be informed of the trust and updated on the status of the trust over time. The administrator must share trust expenses among other things with all beneficiaries after the initial notice that the trust exists and they are named a beneficiary.

Safeguarding Interests This means it is the admin’s job to protect the assets against unauthorized spending or use. What is needed to safeguard an asset varies case to case. An experienced attorney can help you determine what’s right for your situation and how to best protect assets. Contact Lonich Patton Ehrlich Policastri for a free 30 minute consultation on trust administration.

Along with their fiduciary duties, trust administrators are also expected to operate under certain principles.

A trust administrator shares openly how the trust is being managed with 2 of the beneficiaries.

Good Faith This means that the administrator must be honest, open and transparent in the way they manage the trust and in the ways they benefit from it. This is incredibly important as the beneficiaries have the right to sue the trust administrator if they fail to act in good faith.

Prudence/Fairness This requires that the administrator operates under these two principles. Fairness ensures the admin avoids playing favoritism amongst the beneficiaries. Prudence requires that the admin does not make risky investments with the trust which also has a hand in safeguarding the assets.

If you’ve been named a trust administrator, it’s normal to feel overwhelmed. There is so much information and it is a huge responsibility. Reaching out to an experienced estate planning lawyer can set you on the right path and prepare you for the duties ahead. Contact Lonich Patton Ehrlich Policastri for a free consultation.

An attorney sets up a revocable living trust with a client at their desk

What Is A Revocable Living Trust And Why Should You Have One?

January 8, 2020/in Estate Planning /by Michael Lonich

As the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you. The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.

What Is A Revocable Living Trust?

So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves.

Why Set Up A Living Trust?

A lawyer and client go over paperwork for setting up a revocable living trust

In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.

Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money.

If you live in San Jose or the greater Bay area, set up a free consultation with our estate planning attorneys to learn about living trusts.

How To Set Up A Revocable Trust?

There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass.

For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death.

An attorney hands over keys to a property that was listed in the revocable living trust to the beneficiary.

After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate.

Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.

Live in San Jose or close by? Contact Lonich Patton Ehrlich Policastri to find out if a revocable living trust is right for you.

How Much Alimony Do I Qualify For?

October 17, 2019/in Family Law /by Gretchen Boger

It’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect.

When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.

Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for.

Temporary Spousal Support

The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments.

This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.

Permanent Alimony

While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker.

Two rings sit on top of a divorce form with two ex spouses discussing alimony

The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis.

Get In Contact

If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well.

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Grandparents walking with their grandchildren after learning about grandparents rights in child custody

What Are Grandparents Rights In Child Custody?

October 10, 2019/in Family Law /by Mitchell Ehrlich

As the grandparent of a child whose parents are going through a divorce, many questions can be raised. Will the grandparents be able to maintain visitation of the child? In some cases, if the parents are unfit, can the grandparents be granted full custody? What about joint custody? Lonich Patton Ehrlich Policastri are experienced family law attorneys with knowledge in grandparents rights. Getting the help of a trusted attorney can give you peace of mind and guide you through this challenging time.

Grandparents Rights: Visitation

A grandparents rights to visitation vary state to state. In San Jose, the option for visitation is granted only under specific circumstances. If the parents live separately, are unmarried or a child does not live with either parent or is in the individual care of a step parent, visitation rights may be requested. They may also request visitation if a parent is deceased or if one parent has not been found for over a month. Parents can petition for a grandparent to have visitation rights. If at least one parent agrees to visitation, California courts will consider it. The parents can also refuse visitation rights. If both parents decide they don’t want the grandparents to have visitation, courts will usually determine it is not in the best interest of the child despite any bond that has been formed with the child.

A man going over grandparents rights in an office room

Joint Custody

If you live in San Jose and are seeking joint custody of your grandchild, the good news is it’s possible. Lonich Patton Ehrlich Policastri Family Law can help you gain joint custody. So, when can a grandparent try for joint custody? If custody to a parent/ parents is proven to potentially harm the child, primary custody to a non parent may be awarded. California also operates under the policy of the best interest of the child. If it is proven to be in the best interest of the child to live with their grandparents, joint custody is possible. At the end of the day, it comes down to a stable, safe environment for the child to be raised in.

Full Custody

This is more complicated as California courts typically like to keep parents and children together. There are specific cases where a child may be placed in the full care of a grandparent. For example, if the parents of the child have died, custody may be granted to grandparents. As with joint custody, if parental custody is deemed unsafe or not in the best interest of the child, custody may be granted to a non parent. Parents can also grant full custody to the grandparents or lessen their chance at custody if the child has lived with the grandparents for over a year.

Grandparent holding babies hand. Learn about grandparents rights to child custody

Grandparents rights are circumstantial and very complicated. It’s best to acquire the help of an experienced family law attorney such as those at Lonich Patton Ehrlich Policastri. Get a free 30 minute consultation to go over your options. You don’t have to face this situation alone.

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Contact Us

LONICH PATTON EHRLICH POLICASTRI

1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com

LONICH PATTON EHRLICH POLICASTRI

Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com

1871 The Alameda, Suite 400
San Jose, CA 95126

Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.

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This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

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