Power of attorney (POA) is a legal document that authorizes someone to act on behalf of another person. The person who designates power of attorney is the principal. The person acting on behalf of the principal is known as the agent. 

This can be helpful if you need to delegate authority temporarily to manage finances, make medical decisions, or handle other legal matters when you are unable to act on your own behalf, such as during medical emergencies or extended travel abroad.

However, after the principal dies, a question often arises: who will handle their estate and manage affairs? The answer is a person with power of attorney doesn’t necessarily continue to manage the principal’s affairs after death.

Types of POA

If you are in a situation where you are considering granting power of attorney, you may be wondering what arrangement is most suitable. There are several common types of Power of Attorney designation:

• General POA
  General POA grants a designated agent the power to make decisions on behalf of the principal for a broad spectrum of matters, including banking transactions, sale or purchase of property, or contractual agreements. This should be used only in specific situations, as it grants extensive control to an agent to act on the principal’s behalf.

• Durable POA
  Durable Power of Attorney grants power to an agent if the principal becomes mentally incapacitated. This differs from other POAs, as typically, they are structured to end if you are mentally incapacitated. It’s important to note this doesn’t replace a conservator arrangement, as DPOA must be granted while the principal still has full mental faculties and cannot be granted retroactively.

• Limited or Special POA
  A limited POA allows a principal to grant power of attorney to an agent for use only in specific circumstances, such as cashing checks. Typically this type of POA is only granted for a set period or a particular task.

• Medical Power of Attorney
  Medical POA allows a principal to designate a specific health care agent to make medical decisions if they are incapacitated. This can include making decisions on medical treatments, surgery, life support, organ donation, and medical records release. An agent with medical POA also ensures a Living Will directive or Do Not Resuscitate order is carried out according to the principal’s wishes.

What happens after the principal’s death?

The validity of an assigned power of attorney expires in the event of the principal’s death. This means a person with POA of any kind can no longer act on behalf of the principal. A power of attorney order also cannot substitute or replace a will.

Once the principal has died, only a designated estate executor can manage the principal’s estate. A person with POA might also be the executor of a will, but it isn’t automatically assigned. Once the principal dies, their last will and testament will guide how their affairs should be handled. If they do not have a will, it falls to the courts to distribute any assets.

LPEP Law is Here to Guide You

If you have questions regarding power of attorney arrangements, reach out to the experienced team at Lonich Patton Ehrlich Policastri to discuss. Our team of seasoned family law and estate planning attorneys have years of experience in San Jose and the Bay Area and are ready to guide you to find the right solution.

Call 408-553-0801 or fill out our contact form to schedule a complimentary 30-minute consultation today.

A durable power of attorney is a legal document that allows an individual to appoint someone else to make decisions on their behalf if they can no longer do so themselves.

However, California has specific criteria for a durable power of attorney to be legally binding. You will want to make sure you understand those requirements so that you or your loved ones won’t find yourselves facing a legal battle.

What is a Power of Attorney?

When creating an estate plan, you will want to appoint someone as your power of attorney. That person will be able to make decisions on your behalf if you are incapacitated and unable to do so yourself.

There are several types of powers you can appoint to someone, such as:

• General power: allows the designated person to act on your behalf in any matters permitted by California law.
• Limited power: the appointee can only act on your behalf in specific situations spelled out by you.
• Durable power of attorney (DPOA): controls certain areas designated by the terms of the agreement, even if you become mentally incapacitated.
• Healthcare power of attorney (HCPA) or healthcare proxy: makes decisions regarding your medical care if you cannot do so.
• Financial power of attorney: you assign someone to oversee your assets and make payments on your behalf.

Does California Have Any Legal Requirements For Durable Power of Attorney?

California requires certain criteria for a durable power of attorney to hold up in a court of law.

First, both the principal person and the appointee must be legal adults. The person appointed as DPOA can not be affected by the principal’s incapacitation, and the POA does not go into effect until the principal becomes incapacitated.

To be legally binding, a DPOA must be signed by two witnesses (the principal can not be one of the witnesses) or be dated and acknowledged by a notary public.

What Are Some Things to Consider When Choosing an Agent to Act as a DPOA?

There are a few things to consider when choosing an agent under California’s durable power of attorney law. First, you’ll want to choose someone you trust implicitly to make decisions on your behalf. This person will have a great deal of power over your finances, so it’s essential that you select someone responsible and level-headed.

Finally, be sure to discuss your wishes with your agent in advance so they are clear on what you expect from them.

Planning for the Future

When it comes to planning for the future, you want to make sure you are getting the best legal advice. Our lawyers at Lonich Patton Ehrlich Policastri have years of experience and will guide you in making tough decisions about your future. We can discuss how much authority you want to give your durable power of attorney and ensure they carry out your wishes.

If you live in San Jose or the greater Bay Area, schedule your free consultation or call us at 408-553-0801.

Estate planning is a necessary process that everyone should undertake. You can ensure your assets are distributed according to your wishes and that your loved ones are taken care of by creating an estate plan. This topic may seem morbid to think about, but it’s essential to have a plan in place so that your loved ones don’t have to worry about it later on.

In this article, we will discuss how estate planning can help you achieve your goals.

What Is The Difference Between A Will And An Estate Plan?

Many people draw up a will and think they have completed their planning. However, having a will and having an estate plan are two different things.

A will is a legal document that dictates guardianship of your minor children and distribution of your belongings upon your death.

An estate plan is more detailed. It includes your will, but it also involves trusts, power of attorney, healthcare directives, and more. Basically, it determines how your assets will be managed upon your death or incapacitation.

Estate Planning Objectives

There are four main objectives when preparing an estate plan:

1. Protect your beneficiaries
   If you die without a will, the court will decide how to disburse your assets. An estate plan allows you to designate who receives what. It also prevents long, drawn-out court battles between family members, which could become expensive and lead to family turmoil.
2. Protect your children
   In a perfect world, you will live long enough to watch your children and grandchildren grow up. Nobody expects to die young. However, an essential part of an estate plan is preparing for the event that both you and your spouse may die while your children are still minors. You will want to ensure that your children are provided for, both financially and in terms of legal guardianship.
3. Protect your loved ones from significant tax liabilities
   Estate planning allows you to manage your assets to minimize federal inheritance taxes while you are alive.
4. Protect yourself
   An estate plan will give you the opportunity to discuss naming a Power of Attorney and how someone will manage your assets in the event you become incapacitated. You can also arrange for a Living Will to discuss advance directives and name a health care proxy to make medical decisions if you cannot do so.

How to Get Started on Your Estate Plan

It can be overwhelming to try to figure out everything on your own. As with any legal document, it is important to consult with an attorney when creating an estate plan. Your attorney can help you create a plan that meets your specific needs.

If you live in northern California, contact one of the Estate Planning Attorneys at Lonich Patton Ehrlich Policastri. Our legal team has years of experience helping people with estate planning and making the crucial decisions regarding their assets. Call us at 408-553-0801 to schedule a free consultation.

When it comes to estate planning, it’s not a subject most people want to think about. However, estate planning is essential for everyone, regardless of age or wealth. So it’s important to put a plan in place with instructions in the event of your passing, especially if you have children or significant assets. You are preparing a document that can speak for you and clarify your intentions.

It can be tempting to save money upfront using a quick fix solution with services like LegalZoom or RocketLawyer. These platforms provide templated documents that appear professionally written. Still, this seemingly easy solution can cause headaches or lead to costly situations for your heirs if the documents are not correctly set up or are legally unenforceable.

This isn’t to say there are no situations where a DIY solution may be suitable. A simple DIY will may meet your needs if you have modest assets or a clear division of property. However, for more complex situations, the guidance of a legal professional can be invaluable in ensuring your wishes are communicated clearly and without bias at a time when emotions can be running high.

A hasty decision to create a DIY will can leave lasting financial and emotional consequences for your relatives – at best, leading to confusion and at worst, leading to lengthy and perhaps even hostile litigation if you do not make your wishes clear and legally binding.

Working with an impartial legal counselor can help you make unbiased decisions that align with your own wishes, not influenced by family members or friends.

What should an estate plan include?

At a minimum, an estate plan should include three key elements: a will, power of attorney, and healthcare directive. A will is a document that explains to the court how you would like your assets, such as property, investments, valuable possessions, and even businesses, to be distributed. If you have minor children, it’s also essential that you designate a legal guardian so there is a clear plan in the event anything should happen that leaves you unable to care for your children.

You can also designate power of attorney indicating who is authorized to act legally on your behalf or make decisions in the event you are incapacitated. In conjunction with this, a healthcare directive clarifies how you would like medical situations, such as organ donation, to be handled.

Other factors to consider:

In addition to the will, power of attorney, and healthcare directive, there are a few other factors you might want to include in your estate planning.

You can create a funeral plan that provides direction on how you would like funeral arrangements to be handled in the event of your passing. It may also be helpful to outline arrangements for any final expenses, such as a funeral or settlement of debts.

It’s also vital to keep your estate plan up-to-date with significant life events such as marriage, children, or divorce.  A lawyer can also help ensure proper custody of the will and note any changes throughout your life, so there are no questions of integrity to the chain of custody.

If you have questions about setting up your estate plan, call Lonich Patton Ehrlich Policastri at 408-553-0801 or click here to schedule a free consultation.

Deciding what happens to your assets upon your death is an essential part of estate planning. You’ve worked hard to grow your property, and securing its transference will help preserve your legacy and pass it on to your loved ones. A living trust is created and maintained while you are alive. So, what is a living trust and why might you want to set one up?  

Types of Living Trusts

There are two types of living trusts: revocable and irrevocable. Revocable living trusts are the most common as they can be modified at any point in your lifetime by either yourself or a co-trustee (such as a spouse). Property placed in irrevocable living trusts is, as the name implies, unable to be modified or removed after it is put in the trust. In this post, we will only address revocable living trusts.

How It Works

Before you decide to create a living trust, it is vital to understand what will happen to your assets once they are part of the trust. When you place an asset within your trust, it becomes the property of the trust. Deeds and other documents will no longer be under your name, but rather be under the name of the trust. When you set up a trust, you name yourself the trustee, and have the authority to move your assets into and out of the trust should you ever want to sell or modify the assets in any way. You also name a successor trustee, who will take over the trustee role after your death or incapacity and be able to take control of your assets without having to go through the court.

Differences Between Trusts and Wills

Living trusts, like wills, are designed to ensure your assets are divided and distributed as you intend. Though the end goal of trusts and wills is essentially the same, there are several differences to consider in order to decide which option is best for you.

Unlike wills, living trusts do not have to go through the probate process in order for your assets to be passed down to your heirs. Probate can be a long and often costly process that requires involvement with the court to calculate the value of your estate and involves making sure all of your debts and taxes are paid before your assets can be distributed. The length of time probate takes varies depending on the size of your estate and the state you live in. In California, the average probate process takes between 9 months to a year and a half, but each case is unique so the length of probate varies. Probate costs are proportional to the size of your estate, meaning that the larger it is, the more expensive the probate process.

The other main differentiating factor between wills and trusts is your privacy. A will is a public document that can be viewed by anyone after your death, whereas a trust remains private at all times unless you or the trustee you choose as successor gives out your information. 

Where to Start

Creating a living trust that protects your assets and interests is a responsibility that should be left to the expertise of an estate planning attorney who will work with you to make sure everything is prepared correctly. You may do an online search and discover that you can make your own living trust and save the cost of legal fees, but if you truly want your assets and loved ones to be taken care of, an estate planning attorney will provide you with confidence and knowledge that your trust is set up according to your wishes. 

If you’re ready to begin crafting your living trust and live in the Santa Clara, CA area, or if you still are unsure what a living trust is, our experienced estate planning attorneys are here to help you. You can learn more about our living trust services here. We offer a complimentary 30-minute consultation to learn about you, provide information to make the decision that’s right for you, and answer any questions you may have. Simply fill out our contact form or call us directly at (408) 553-0801 to get started.