Wednesday, January 24, 2018

Safeguarding Your Documents from Natural Disasters

In an article last fall we discussed the consequences of lost Wills and Trusts, along with suggestions about where to store these documents. It’s a topic that comes up frequently and, unfortunately, it generally arises after a loved one has died and the heirs have begun the process of settling the estate and are unable to locate these documents.
The recent North Bay fires have brought new focus to the issue of proper storage of important legal documents. More than 40 people died in this tragedy, and many more lost everything, fleeing their homes with nothing but the clothes on their backs. There was no time for rummaging through desks for important legal documents as the flames bore down. Here are some guidelines for creating and storing original legal documents.

The importance of having the original legal documents

Preserving an original document is always advised, as opposed to relying on either a digital scan or photocopy of the original. California has what is known as the Secondary Evidence Rule that allows a person to submit, as evidence, a copy or reproduction as evidence, unless there is a genuine dispute that the copy is different from the original, or if there is some other reason that it is unfair.
Someone who lost his/her original Living Trust can rely on digital or paper copies. A copy you may have in another location–given to a fiduciary, a trusted financial adviser or personal source, may be used. Even if you don’t have a copy yourself—which would be the case with the fire victims, there may be copies out there.

Make a digital copy and save it to a Dropbox folder or the Cloud

These days, the general recommendation is to make a digital copy of your legal documents and save them online, either in a Dropbox folder or the Cloud. If someone–a disinherited heir or a disgruntled family member–disputes the copies as originals, they well may become inadmissible.

A better solution: Execute a new Trust, avoiding any dispute about its being a copy

If you’ve lost your original documents but have access to copies, it is advisable to execute a new Living Trust. Get it notarized, and it now becomes an original, avoiding the possibility of someone’s disputing its legitimacy. Further strength can be given to these documents by including language stating copies may be relied upon if presented. This helps organizations, such as banks or title companies, accept the documents as legally binding.

No copies, no validating the terms of the Trust

If no copies exist, then you’ll have to create new documents. If the person who originally created them for you is still alive and in business, creating new documents will likely be straightforward. (A caveat: It’s likely that your Trust was out of date anyway; this might be a very good time to review and update it.)
The most tragic situations are those when the person who created the trust dies, and no copies are found anywhere. With you out of the picture, unable to assist in recreating the terms of the Will or Trust, it will be as if the documents never existed.

A few other thoughts on storing your important legal documents

  • We always caution our clients to keep the original Trustsin a secure place in their homes or offices.
  • As a backup, you can give a copy to your successor Trustee and/or another trusted friend or family member.
  • A safe deposit box always come up in discussions, but this may not be the best solution, as it could require a court order to open the box if it’s in your name without a joint owner, or if you neglect to title the box in the name of your trust. This means your Trustee wouldn’t have immediate access if you became incapacitated or died. Keep your Trust in a fire/waterproof safe in your home or office. Share the combination with someone you trust.
  • If these other options are not realistic, keep your documents on a high shelf—away from floods, children and animals, though this strategy would have been meaningless for the North Bay fire victims.

Make sure your family knows the location of your Trust

Make sure your family knows you have prepared your Living Trust and where it is located. In addition to the bound copy of the Trust that we provide, we can also offer an electronic version, and many families share this with their heirs. Remember that many years may elapse between the time the Trust is prepared and the time it is needed to settle an estate, and circumstances can change. Successor Trustees themselves may die or become incapacitated. It may be advisable to share the Trust with several trusted family members. Most of all, don’t hide it—if people can’t find it now, there’s little chance they can find it when they need it.

Wednesday, January 17, 2018

Tales From the ER: The Man with the DNR Tattoo

The following story from The New England Journal of Medicine illustrates the importance of not just creating an Advance Healthcare Directive and a Do Not Resuscitate (DNR) order, but making sure your family and healthcare providers are advised of and committed to your decisions.

An unconscious man with a DNR tattoo on his chest

A Miami medical team faced a legal and ethical dilemma when an unconscious patient was wheeled into the emergency room with “Do Not Resuscitate” tattooed on his chest–the tattoo seemed to be the patient’s way of identifying his end-of-life wishes. It didn’t end there: “Not” was underlined, and the tattoo included a signature. Not surprisingly, none of the team had encountered this situation before, and there was no way to validate the DNR or determine if it was legally sound.

The tattoo was created to provide clarity; what it actually created was confusion

The tattoo produced more confusion than clarity—fueled by the common belief that tattoos are the result of regrettable decisions made while intoxicated. While in theory this tattoo may have been a great idea, without any context, it backfired.
This patient had a history of pulmonary disease, lived at a nursing home but was found intoxicated and unconscious on the street and brought to the hospital. He arrived without identification, family or friends. The doctors had no idea what his end-of-life wishes were, but an infection had led to septic shock, which causes organ failure and extremely low blood pressure. When his blood pressure started to drop, the medical team gave him intravenous fluids, antibiotics and blood-pressure medication, buying time to decide whether to try to save his life or manage his pain and let him die, as per his DNR order.

A cautionary tale helps explain medical team’s dilemma

Doctors referenced a case published in 2012 in The Journal of General Internal Medicine about a 59-year-old patient who had a DNR tattoo on his chest. In this case, however, the patient wanted lifesaving measures to be taken if he needed them. The reason for the tattoo? He’d lost a bet playing poker. In his case, the tattoo was a joke, but the medical team couldn’t assume that the tattooed man in their own ER was also the butt of a joke.
In Florida, when outside of hospitals, DNR orders are printed on yellow paper and signed by a physician and the patient, or a surrogate. Inside the hospitals, doctors can talk to a patient or the patient’s family or friends to determine end-of-life wishes. Since this patient remained unconscious, the doctors consulted an ethics expert to discuss the legal and ethical issues. He determined that the doctors could assume that the tattoo reflected the patient’s wishes.

The tattooed man died the next morning

The patient died the next morning. Thankfully, social workers were later able to track down the man’s proper DNR paperwork which supported the DNR order, assuring doctors they had acted according to the patient’s wishes.

A DNR tattoo: No substitute for an Advance Healthcare Directive or Living Trust

The lesson we can take from this? A tattoo is not the best way to alert medical staff to your wishes. A better methodology is to keep the actual document in a pocket or wallet, and it does not replace a properly executed Advance Healthcare Directive.

Inform families, friends and doctor of your end-of-life wishes

If a family member or friend who is unaware of a patient’s DNR wishes calls the local emergency response team (EMT) via 911 or other system, it’s likely that this team will work to resuscitate the patient; EMTs are trained to save lives, not interpret DNR orders.
While we can all appreciate the humor in this story, it alerts us to the importance of making sure our family and doctor are aware of and support our decisions.
CDP’s Living Trust package includes both a Power of Attorney and Advance Healthcare Directive, where you name an Agent, the person who will make healthcare decisions for you if you’re no longer able to do this yourself. An important part of this document is a Do Not Resuscitate (DNR) order—which means you do not want a medical team performing Hail Mary efforts to keep you alive when you are clearly near the end.

Do you need to create or update your Living Trust?

Life changes often mean that it’s necessary to name a different Agent for your Healthcare Directive or Power of Attorney.  Contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.

Wednesday, January 10, 2018

A New Year: A New Start and a Divorce

A New Year. A time for a fresh start. We’re betting that even those who hate New Year’s resolutions still make silent promises to themselves that this will be the year they finally lose ten pounds, take that trip to Disneyland they’ve been promising their kids or visit their folks more often. And for the many married couples filing for Divorce, the New Year will be the time for major life changes that will have a profound effect on the lives of their families.

Divorce rates increase by one third in January

According to the American Academy of Matrimonial Lawyers, the number of Divorce filings is one third higher than normal in the month of January. Unfortunately, too many couples are more focused on ending a bad relationship than they are on taking the time to fully understand the process involved in dissolving a marriage.

Preparing for Divorce: Understanding the financial implications

The most important preparation for Divorce should include understanding the financial implications of dividing property and starting a new life as a single adult or parent. Each spouse needs to have a firm understanding of what and where all of his/her assets are and the most equitable way to divide them. If there are children, identifying custody and a parenting planare critical parts of the Divorce process.

People considering separation should review their taxes

Most of us receive our end-of-year tax forms in January, so this is the perfect month to review your earnings as well as your debts. Gather copies of documents that verify assets, liabilities, income and expenses–bank, brokerage and retirement statements and real estate documents.

Money and children are the most contentious topics for divorcing couples

Having a firm grip on your assets and liabilities puts you in a better position to negotiate and reach an equitable financial resolution. Many people are surprised at the amount of debt their spouses are carrying, which may include credit card debt that is easy to accumulate and difficult to pay down. California is a community property state, so that which is accumulated during marriage is a shared responsibility—which can become problematic when it comes to time for division of property.

Run a credit report on yourself

One financial adviser recommends running at least one credit report on yourself, as there may be debt about which you may be unaware. It can be shocking to learn that you potentially owe thousands of dollars because you have agreed to personally guarantee loans or have unknowingly underwritten other financial commitments. This kind of thing can happen when one spouse manages the couple’s finances and the other spouse remains uninformed about the couple’s fiscal affairs.

Review retirement plans and insurance policies

Review retirement plans and insurance policies to determine what changes need to be made to take your spouse off the policies and protect minor children. Something to think about: You want your life insurance proceeds to go to your children; however, if the children are minors at the time of a parent’s death, the receipt of a large sum of money is complicated. Even if a child is 18 years old and legally an adult, the receipt of a large amount of money may not be prudent. It might be better to name a conservator who would be responsible for managing the money and overseeing the wellbeing of children until they are able to care for themselves independently. If you have a Living TrustPower of Attorney and Advance Healthcare Directive, you likely will want to make changes to these documents as well.

Saving money and stress with CDP’s Uncontested Divorce

California Document Preparers has assisted hundreds of Bay Area couples with their Divorces. We are the service providers of choice for an increasing number of couples who do not require an attorney to get divorced because they are not fighting over custody of their children and they are able to determine an equitable division of property—these are the fundamentals of an uncontested divorce. We help our clients save money and stress at what is already a very difficult time for families.

We guide our clients through the step-by-step Divorce process

Our clients fill out our attorney-approved workbooks, and we prepare the legal documents and file them with the courts. We manage the entire process and remain in touch by phone and email. Our dedicated team is compassionate and helpful; we understand the emotional impact of Divorce and work hard to make the process as seamless as possible.
If a Divorce is part of your plans for 2018, contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.

Thursday, January 4, 2018

Difficult Family Conversations About End-of-Life Planning

The reluctance or downright unwillingness to talk to parents and grandparents about the difficult topic of end-of-life planning is one that frequently arises in our offices. It ranges from “Mom’s a terrible driver and shouldn’t be behind the wheel, but nobody will confront her” to “Dad’s health is deteriorating, and we need to talk about downsizing, estate planning and preparing a Living Trust, but every time we try to talk to him he blows up.”

One client’s story illuminates the need for planning

“Brian’s” grandfather has been managing his cardiac health for many years–bypass surgery at 60, stents put in at 73 and again at 82. He is now 85 and still in good health, is active and busy. He just rebuilt his garage and a new boat dock, from the ground up, earlier this year.

Recent heart procedure left Grandpa with diminished physical capacity

But Brian’s grandfather recently underwent a procedure to have still more stents installed, and for the first time, he left the hospital not feeling significantly better. Instead of being back to 90% efficiency post-procedure, he’s now at about 50%. Brian and his family have always taken for granted their grandfather’s robust health, but this last procedure has been a wakeup call. They’re aware that their grandfather’s diminished capacity at 85 is going to affect his ability to care for himself, his wife and his property.

It gets more complicated: Meet Grace

Grandpa remarried about five years ago, and “Grace”, 83, is in shaky health. Her kids and other family members all live on the east coast. If Grandpa dies first, his Trust allows Grace to continue to live at his very high-maintenance, hilly, fire-prone, lakefront property for the rest of her life.
While Brian and his siblings are all very fond of Grace, they worry that she won’t be able to care for herself, much less the property, which is fairly rural. If/when Grace can no longer drive, she will be isolated. Brian is his grandfather’s Trustee, and he’s concerned that Grace will then become his responsibility, along with managing the estate.

Time to have “the talk” with Grandpa

Brian knows that he must have this conversation with his grandfather. He’s struggling with how to frame the conversation so it doesn’t sound like he’s trying to get rid of Grace after his grandfather dies. Brian wants to work with his grandfather to develop a workable solution. The sensible thing would be for the couple to downsize now, move to a retirement community that would care for both his grandfather and Grace as their needs require. But ask anyone who’s had to deal with aging family members–the sensible thing can be a tough sell.

End-of-life planning discussions never get any easier

Those with parents and grandparents in failing health need to encourage them to name a Power of Attorney and an Agent for their Advanced Healthcare Directive before they become incapacitated. Our Living Trust package contains both of these documents and thoughtfully assists families to prepare for eventualities. If creating a Living Trust is on your New Year to-do list, contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We are helpful, compassionate and affordable.