Dear Len & Rosie,
My father is 90 years old, divorced, and lives in a retirement center. My sister and I are his only children. He has been reluctant to tell us of his plans for his final days here on Earth. I know that he has a paid up insurance policy and I have the policy number. When I called the insurance company in San Ramon, they refused to give me any information. My sister and I do not have the means to bury him without some financial assistance, and he will have some expenses that will need to be paid. What can we do in the event he passes away?
Lynetta
Dear Lynetta,
The insurance company won't talk to you for the simple reason it owes your father a duty of confidentiality. They just can't spill the beans about his life insurance when anyone calls. Just because you're his daughter doesn't give you the authority to access your father's private financial information and legal documents. You could do this if your father gives you a power of attorney or if he becomes incapacitated and the court appoints you as his conservator.
Until that happens, it's up to your father to decide whether or not he should clue you in about his finances and his estate planning documents. What you should do is to talk to your father about this and try to convince him that he should trust you and allow you to help him. You should be careful about this. It's apparent that your father is a very private man. He could disinherit you if he decides that you're too "pushy". Make sure that he understands that you will respect his wishes no matter what they are.
If your father refuses to let you know what his plans are, there's nothing you can do about it unless he loses mental capacity and is put into a conservatorship. You and your sister may have to pick up the pieces after your father's death. Finding his financial information and estate planning documents could turn into a morbid scavenger hunt where you have to lift up his mattress to look for his safe deposit box key. Tell your father that if he won't clue you in he should at least be organized enough to make it easier for those who will have to manage his estate after his death.
The only consultation we can give you is that you don't have to do it. You and your sister will not be liable for your father's debts after his death, and you do not have to manage things if you do not want the responsibility, even if you are named as executor or trustee in his will or trust.
Len & Rosie
Dear Len & Rosie,
I have a revocable living trust and recently was told due to a new law called HIPAA, I need to sign a new health care directive. Do I really need to do this? I was advised to do this and that it would cost me a couple of hundred dollars. As a senior on a fixed income, I don't want to have to spend the money.
Marilyn
Dear Marilyn,
HIPAA is the Health Insurance Portability and Accountability Act of 1996. It's a federal law that created some significant rights with respect to health insurance and other medical matters, including a right to the privacy of your medical records. Even though the law was enacted in 1996, it was only recently that the federal Department of Health and Human Services issued new regulations to implement this law.
Under HIPAA, health care providers can be penalized or even prosecuted for criminal offenses if they release your protected medical information to others without your consent. This is a good for you, because it protects your right to privacy. But if you should become incapacitated, HIPAA can make things more difficult for your family.
When you created your trust, you probably signed a Advance Health Care Directive, as part of a comprehensive estate plan. This document allows you to name family members or other trusted persons to make medical decisions on your behalf if you cannot do so on your own. The problem with HIPAA is that health care providers don't want to get sued or prosecuted for violating your privacy rights. They may refuse to discuss your medical condition with your family or give them access to your medical records.
You should sign a new Advanced Health Care Directive that gives permission to your health care providers to release confidential medical information to your health care agent. The good news is that you shouldn't have to pay for it, unless you want your health care directive to include specific provisions tailored to your wishes about your medical treatment or the disposition of your remains. Go to www.lentillem.com on the Internet and download an updated form, free of charge. Your health care provider may also have updated forms available at no cost or for a nominal fee.
Len & Rosie
Dear Readers,
Many of you have paid close attention over whether or not artificial nutrition should be withheld from Terri Schiavo, a forty-one year old woman in Florida who has been kept alive for the last fifteen years by tube feeding. Despite all of the political rhetoric you have seen, read, and listened to in the last few weeks, you should not doubt the motivations of either her husband or her parents. This is neither homicide nor a morbid effort to keep someone alive beyond their time. This is a loving husband, and loving parents, each fighting to provide for Terri in the manner they believe is right.
The tragedy is that we cannot really know what Terri would have wanted. She can no longer speak for herself. What if what happened to Terri Schiavo happens to you? If Terri had lived in California, her husband would never have been able to obtain a court order terminating artificial nutrition without presenting clear and convincing evidence that his wife did not want tube feeding or had appointed him as her agent for health care decisions. As a practical matter, proof of your wishes has to be in writing.
You need an Advance Health Care Directive. It's a form you can use to make known your desires about the medical treatment you want or do not want to receive. You can name agents to make medical decisions on your behalf. You can also elect whether or not you want life sustaining treatment if you are terminally ill, or in a coma or persistent vegetative state, or if the burdens of a proposed medical procedure outweigh the expected benefits.
There is space provided on the form so you may customize it for your own needs. Many of you, for example, may have religious restrictions prohibiting some forms of medical treatment that you will want to be respected. You may also use this extra space to donate your organs and direct the disposition of your remains.
If you don't have an Advance Health Care Directive, or if you want a new one, you can download a form for free at www.lentillem.com. You can also obtain forms from many medical providers, or from the California Medical Association. When you get the form, pay close attention to its instructions. It must be signed before either a notary public or two adult witnesses, one of whom may not be a relative or inheritor of any of your assets. Once it's signed, give copies to your family and your physician.
Do this today to help avoid a tragedy for you and your family in the future.
Len & Rosie
Dear Len & Rosie,
My dad had a stroke and has been in the hospital for more than a year. He has gotten better and is ready to come home. My mom has his power of attorney and refuses to bring him home although all his sons and daughter want to respect his wishes. She has given us a list of weak excuses why she does not want him there. We have checked on the home care needs and it is in fact possible for him to get the care he needs at home and he has coverage. On behalf of his son's and daughter, what power do we have to bring our dad home, and respect his wishes?
Scott
Dear Scott,
I am sure that your father would like to live in his own home, and he has the right to insist on returning home if he is capable of making decisions for himself. However, if his stroke has left him mentally incapacitated, then your mother has the legal authority to make decisions on his behalf, because she is the agent your father named in his durable general power of attorney. The only way to trump the power of attorney is for your father to revoke it (if he is able to), or for you to file for a conservatorship over your father's person and estate. Doing so would likely tear your family apart and we cannot recommend that you do this.
Your family is in a very delicate situation. While you may consider your mother's explanations as to why she does not want your father to return home to be weak excuses, your mother clearly feels otherwise. She is probably not capable of providing her husband with all of the care he needs by herself, and she may not want to give up her privacy by allowing care givers to stay in her home all day, everyday.
What you need to understand is that each of us has a limit as to what we can do for our family members and loved ones. In an ideal world, your mother would shoulder the burden of care for her husband for the rest of his life, or hers, but she may not be physically and emotionally capable of doing so. If you think about it, you can be sure that your father wouldn't want his wife putting herself into a care home trying to keep him out of one.
Len & Rosie
Dear Len & Rosie,
My parents are in their 60's and had the idea of putting my sister or me on their checking accounts to be able to write checks and take care of their accounts if something should happen to them. My concern is that if my name is on their accounts, and I was to be sued for some reason and they go after all my assets, they could go after my parents' accounts too. How can I protect my parents' money if they were to put my name on their accounts? I would sure hate for something that happened to me to cause them to loose all their money just because I'm looking out for them.
Tim
Dear Tim,
Your parents have a good idea. You do not have to worry about your creditors going after their money. If they put you on their checking account as someone who can sign checks with the bank's own power of attorney forms, the money is not yours and is not subject to the claims of your creditors. Even if your parents add you and your sister to their accounts as joint tenants, the money will still be protected. Under California law, money in a joint tenancy account belongs to the person who put the money into the account, and is not actually owned equally among the joint tenants.
Even if your parents have a trust, it is frequently a good idea for them to put a family member or loved one their day-to-day checking account, rather than putting that account into the trust. The reason is that even though a trust names successor trustees to take over the management of the trust if the initial trustees become incapacitated, transferring the trust assets to the new trustees is not an automatic process. If you are on the checking accounts now, you'll have immediate access to enough money to pay their day-to-day bills while you go through the legal process of becoming trustee if your parents become incapacitated
Your parents should not rely on their durable general powers of attorney to enable you to write checks on their bank accounts if they become incapacitated. Banks are notorious for refusing to respect the validity of perfectly good powers of attorney, even though they are required to do so under the law. You'll have an easier time taking care of your parents when they need help if they put you on their checking accounts now.
Len & Rosie
Dear Len & Rosie,
My mom is 72 years old and was hospitalized yesterday. I was forced to go into her house to look for her with the aid of the police and a locksmith. The house was a complete mess and I will need professional help to clean it up. I realize I won't be able to find any of her important papers. I don't even think she knows where they are. When she comes out of the hospital I plan on her staying with me. How can I get copies of her divorce papers, her will, the deed to her home and other important papers. I know she made a will years ago, but doubt she has an available copy or remembers the name of her attorney. I'm starting from scratch.
Teri
Dear Teri,
It can be very difficult to pick up the pieces of a disorganized person's finances and try to make sense of them. Keep an eye on your mother's mail. Within three months you should have account statements for everything your mother owns and you will have a better idea as to where you stand. If your mother is still capable of deciding things for herself, then she should see an attorney and make sure that at the very least she has a durable general power of attorney and an advance health care directive.
You can get a copy of the deed to your mother's home from the county recorder or the customer service office of a local title company. Your mother's original deed was an important document only until it was recorded in the county records. After recordation, it's not going to matter one whit if you are unable to find it.
If you want a copy of your mother's divorce decree, check with the clerk's office of the Superior Court in the county where she got divorced. If she divorced long ago, the court clerk will likely have to order the case file from the court's archives. Or you can ask her ex-husband, if he's still alive. You can also ask her divorce lawyer, but if the divorce was long ago, it's likely that the lawyer has already gotten rid of your mother's file.
If you cannot find your mother's will, try to find out who her lawyer was. Many attorneys keep original wills for their clients. If her attorney prepared any deeds for her home, the attorney's name may be listed somewhere on the deed. You can also locate the notary public who notarized the deed through the County Clerk's office or the California Secretary of State.
If your mother's will cannot be located, then her estate will be distributed equally among her children by intestate succession. Each living child will get a share, with the shares of any already deceased children child survived by living descendents passing to those descendents. It will work out in the end.
The lesson here is that you should avoid creating problems for your children. Keep your finances and estate planning documents organized, and make sure your children know where to find them.
Len & Rosie
Dear Len & Rosie,
My mother is 87 years old and is still mentally competent and can handle her own affairs. She refuses to fill out a durable power of attorney or health care directive papers so I can take care of her when the time comes or if an emergency occurs. Any suggestions about what I can do?
Stuart
Dear Stuart,
It's your mother's life and it's her decision to make. Many people just don't like the idea of confronting their own mortality. Or, your mother may be concerned that if she gives you a power of attorney you will turn around and start taking over control of her finances and even move her out of her own home. This is a common fear. Your mother does not want to give up her independence and is likely worried that giving you a power of attorney is the first step on the road to becoming dependent on others for everything.
What you need to do is to convince her that you are asking for a power of attorney and an advance health care directive for the right reasons. There are two points you can make that should make it easier.
First, remind her of Terri Schiavo, and other unfortunates who wound up in dire straights because they never bothered to create an estate plan. Ms. Schiavo was kept on life support for the better part of two decades, and we will never know if she would have approved of either receiving life support for so long or the removal of her feeding tube. An advance health care directive and a power of attorney may allow your mother to make her wishes known at a desperate time in which she would be unable to speak up for herself.
Second, you need to let her know that a power of attorney and an health care directive is only "just in case." Neither has to take effect immediately. They can be written so that you would have absolutely no authority to do anything on her behalf unless her physicians determine that she is incapable of doing so for herself. She will remain in complete control.
Len & Rosie
Dear Len & Rosie,
My mother is 93. She somehow put her will away when she was looking through her papers. She has mild dementia now and cannot remember where she put it. Is there someway I can get a duplicate? I have looked everywhere and I am at a loss.
My name is on all of her accounts and she has no property. I have a sister, and the will stated that everything would be split down the middle between us. How much trouble is there going to be when my mother is gone?
I fully expect my sister to get greedy when my sweet mom is gone. I don't intend to cheat anyone, but I cannot find the will. What can I do if the will is not found?
Van
Dear Van,
Try to figure out the identity of your mother's lawyer. If you can, contact the lawyer and see if he or she has your mother's original will. Many lawyers offer to keep their clients' original wills at the office in a fire-proof safe, or even in a bank safe deposit box. Lawyers like to do this because it gives them the inside track on getting hired to handle the probate estate upon a client's death.
If you cannot located the original will, then upon your mother's death there will be a legal presumption that she revoked her will because it went missing while it was in her possession. But this shouldn't really change anything. If your and your sister are the only two children, then the two of you would inherit your mother's probate estate by intestate succession, the law about who gets what when someone dies without a will. The only real difference in this case would be that someone other than the person your mother named as executor in her will could wind up being appointed as administrator of your mother's estate by the court. And since her accounts are in joint tenancy with you, there won't be a probate anyway.
As for your sister, the only thing you should do now is to keep accurate records of how you spend your mother's money. Keep all of your mother's account statements, canceled checks, and receipts. After your mother's death, you can be made to account for anything you did with your mother's money, both before and after her death, so be very careful about what you do with your mother's money. After your mother's death, you can pay off her remaining bills and divide her joint tenancy accounts equally between you and your sister.
Len & Rosie
Dear Len & Rosie,
My 85-year-old aunt, whose next of kin are my father and uncle, was injured and is in a coma. She has never married and lives alone. She has done no estate planning or health care directives. What can we do to take care of her bills, etc. while she is unable to?
Terry
Dear Terry,
There's not a lot you can do outside of a conservatorship unless your aunt has previously given you or another family member access to her bank accounts. What has happened to your aunt is one of the most important reasons why everyone ought to have at least a basic estate plan in place. As your aunt is incapacitated and has no power of attorney, no one has the legal authority to access her funds to pay her bills unless they are already on your aunt's accounts.
Unless your aunt's bills are already piling up and her doctors are sure her condition will remain unchanged, your family may want to take a wait and see approach. If your aunt comes out of her coma soon, a lawyer can prepare for her a power of attorney, health care directive, and perhaps a will or trust. With an estate plan in place, her brothers or other trusted family members will be able to manage her affairs on her behalf.
If, however, your aunt's condition is stable, and it is not likely that she will either come out of her coma and regain capacity or pass away soon, then someone in your family will have to hire a lawyer and file for a conservatorship in court. There, the judge will appoint a qualified person as conservator to manage your aunt's estate under court supervision. A conservatorship, however, should be viewed as the final resort, as the costs and extra work involved make it more complicated than any of the alternatives.
If your aunt passes away, her estate will pass by "intestate succession" as she has no will. If she has no spouse or surviving parents, her estate will go to her living siblings, and any living descendents of any predeceased siblings. If her estate is worth more than $100,000 upon her death, there will be a probate.
The law has mechanisms in place to protect people without estate plans who become incapacitated and to dispose of their assets upon their deaths, but it is almost always less expensive and less complicated for people to do the hard thinking now and arrangements for themselves and their heirs by creating an estate plan suited for their individual needs.
Len & Rosie
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-12:45 PM, and Sundays, 4-7 PM, on KGO Radio 810 AM.
