Do you Need an Attorney to do your Estate Plan?

Do you need a Lawyer to do your Estate Plan?

The simple answer is yes, the more accurate answer is maybe. Many of the documents contained in a classic estate plan can be filled out using online programs for a relatively low cost. If you have a simple situation - for instance, 1 house, 1 child, 1-2 bank/brokerage accounts, and of course, complete faith in the ability of said child to manage your assets, this option might suit you. For persons with a slightly more complicated situation, however, professionals agree that securing an experienced Estate Planning attorney is the safest way to go. It is also the least expensive route if your assets total more than $150,000. If your assets are not secured in a trust (part of your estate plan), your property must go through Probate. Do It Yourself Estate Planning is better than no estate plan at all, but it's a risky proposition when you weigh the 1 pro (low cost) against the many risks.

In my experience as a Contra Costa County Estate Planning lawyer who frequently works in Probate and Trust litigation, I see the consequences of haphazard estate plans on a daily basis. Most of my litigation cases involve a lack of estate plan, while others exist because they were done by an inexperienced lawyer, or put together by the person who has passed. I have one client presently who hand wrote their own will based on internet examples. Due to several oversights on his part, his wife and daughter (who is an attorney as well), now have to give a portion of their inheritance to court fees and attorneys fees. 

Specific language is also important. This is true for all of the documents in a typical estate plan. Your Trust, Your Will, Your Power of Attorney, and Your Healthcare Directive are Yours. They should properly reflect your wishes in a legally sound manner. An experienced estate planning attorney will know how to craft the wording specifically for your family and its unique dynamics.

In addition, the documents in your estate plan should have a high degree of specificity. When a lack of specificity exists, your will and/or estate is left open to interpretation. Different interpretations lead to possible litigation and high attorney fees. A good Estate Planning Attorney can put your mind at ease by ensuring all of your bases are covered.  

The cost of a complete Estate Plan in Contra Costa County runs between $2-$3,000. The attorney fees of an estate going through Probate, of a $1 million dollar estate for example, are above $20,000. Fees go up as the asset value increases. The cost of litigation can certainly be much more, but is best avoided by a legally sound Estate Plan tailored specifically for your needs.

I offer a free 30 minute consultation for all clients from my Elder Law office in downtown Walnut Creek. Call 925-322-1763 to get started.

The Importance of the Advance Health Care Directive and the Power of Attorney

"Ending Life," a piece by 60 minutes that aired on July 19th, highlights the importance of having an advance health care directive and power of attorney. The piece detailed the criminal case of Barbara Mancini, who was arrested for allegedly aiding her father's suicide. Her actions were simple: she handed her dying father a bottle of morphine, nothing more. Four days later he died in the hospital, sparking an End of Life Debate that has gotten considerable press. As an Estate Planning attorney, the story reiterated for me just how important it is to have detailed legal documents such as an Advance Health Care Directive and Power of Attorney. While such forms cannot always prevent complications, they can certainly provide insurance against it. While lawyers are no doubt familiar with what these documents are, most of us are not. So, what exactly are they, and how can they help us when we're older?

Advance Health Care Directive

Under Federal Law, we all have the legal right to give specific instructions regarding our own health care. The Advance Health Care Directive, also called a living will, is the legal document that specifies your wishes, should you become unable to make decisions or become incapacitated. Because of the sophistication of medicine and medical technology that exists today, having a document that specifies how you wish to live or be cared for, has become essential. The expense, pain, and burden which our life prolonging technology affords us is something many of us may not wish to endure. Or, alternately, may wish to take advantage of.

The "Power of Attorney" typically goes hand in hand with the Advance Health Care Directive. 

Power of Attorney

In addition to having the right to specify our own health care wishes, by law we have the right to name another person to make health care decisions for us. A Power of Attorney outlines not only who you wish to make decisions for you, but how and when you wish them to do so.

Do you need the help of an Attorney?

While you can fill out a legally valid Health Care Directive form provided by the state, most people will benefit by having an Advance Health Care Directive crafted by an experienced Estate Planning attorney. The benefit of working with an attorney comes down to foresight and specificity. For example, the form provided by California has two options to choose from:

"I do not want my life to be prolonged if the likely risks and burdens of treatment would outweigh the expected benefits, or if I become unconscious and, to a realistic degree of medical certainty, I will not regain consciousness, or if I have an incurable and irreversible condition that will result in my death in a relatively short time. "

                                                                            OR

"I want my life to be prolonged as long as possible within the limits of generally accepted medical treatment standards."

When you consider these two options, you will realize they are not very specific. An experienced Estate Planning lawyer can help you craft your directive in a way that not only guards against potential complication (or unnecessary pain for that matter), but honors your wishes and values. The Advance Health Care Directive is a standard part of any well designed Estate Plan, and has no additional cost associated with it. 

The same goes for your Power of Attorney. Yes, you can print out a form and fill it out yourself. However, taking advantage of an attorney's expertise helps to insure against future unforeseen problems. For example, a particularly important part of the document is called the "Agent's Authority." On the form provided by the state of California, the following choices are offered:

My agent is authorized to 1) make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care to keep me alive, 2) to choose a particular physician or health care facility, and 3) to receive or consent to the release of medical information and records.

At a basic level, an attorney can make sure your AHD (advance health care directive) and POA (Power of Attorney) do not conflict with one another. They can also help you to provide more specificity. As you may notice, the above statement gives the person with Power of Attorney free reign. A good estate attorney will help you craft a Power of Attorney that takes into consideration the dynamics of your particular situation and to foresee any potential complications. The Power of Attorney is also a standard part of any well designed Estate Plan, and is included at no additional cost.

To complete your Estate Plan, or update a previous Estate Plan in California, contact my law office at 925-322-1763. I offer a free consultation and specialize in Estate Planning in Contra Costa County and Alameda County.

http://www.cbsnews.com/news/ending-life-barbara-mancini-end-of-life-debate-2/