Posts tagged advance health care directive
How do I plan for incapacity using my revocable living trust?

One of the major objectives of using a revocable living trust is to plan for incapacity. For that reason, revocable living trusts typically contain a provision that provides for a successor Trustee who is able to manage the assets of a trust for the benefit of the Trustor (the creator of the trust) while the Trustor is incapacitated.

The standard for when the successor Trustee will assume the role of Trustee usually depends on the medical determination of one or more physicians. Some trusts may also allow the successor Trustee to make this determination based on his or her personal judgments. As a practical matter, however, financial institutions that hold the trust assets may have a difficult time accepting an informal determination by a successor Trustee.

If relying on the certification of one or more physicians, it is important to ensure that an Advance Health Care Directive naming an agent is in place. A physician may decline to render an opinion regarding the current Trustee's capacity without a document allowing disclosure of sensitive medical information.

As our population's lifespan increases, the risk that a portion of it may be spent in an incapacitated state makes it even more important to ensure that proper measures are in place to plan for these situations.

What is an Advance Health Care Directive? (A Brief Overview)

When most people think of estate planning, they think of money, investments, real estate, and other items of value. One thought that is overlooked are the important medical decisions that may need to be made if you became incapacitated. For this reason, just about every estate plan also includes a document called the Advance Health Care Directive.

Features Of An Advance Health Care Directive

The Advance Health Care Directive allows you to tell your medical providers your wishes with respect to life-sustaining treatment if you have a terminal illness, if you're in a coma, or the risks of treatment would exceed the expected upsides of that treatment. You may also specify the parameters of any relief from pain that you want or organ donation. Perhaps one of the most important things the Advance Health Care Directive does is allows you to name one or more individuals (also known as an "health care agent") to make decisions for your regarding your health care.

Powers of A Health Care Agent

In general, the health care agent has the following powers:

  1. He or she has the right to receive your medical information
  2. He or she has priority over others in making health care decisions for you
  3. He or she has the power to deal with your remains after you pass away (except to the extent that you specify in the Advance Health Care Directive)

California has conveniently created a statutory form of Advance Health Care Directive. You can find it for free in the California Probate Code Section 4701, so there's no reason not to have one!

What is it like working with an estate planning lawyer? (Step 3)

After the first real meeting, the estate planning lawyer may have additional follow-up questions. But at this point, assuming you've made some key decisions, the lawyer should have enough data to begin researching any issues (if any) and drafting your estate planning documents. A typical estate plan in California consists of the following documents:

  1. Revocable Living Trust
  2. Pour-over Will
  3. Durable Power of Attorney (Financial Decisions)
  4. Advance Health Care Directive
  5. Assignment of Assets
  6. One or more real property deeds

Draft Documents

After an initial draft of the documents have been prepared, the estate planning lawyer will typically send them to you via e-mail or regular mail so that you can look them over and ask any questions you may have. Alternatively, you may wish to set up an appointment to go over each document with the guidance of your lawyer. This meeting doesn't need to be in person, and can be over the phone.


If during your review you notice things that you would like to change or things that don't accurately reflect your wishes, now is the time to tell the lawyer so that he or she may update the documents before you sign them. The estate planning lawyer may re-send you the updated documents to ensure that the content has been revised to your specifications.

The end result should be a set of draft documents that is ready for signing, witnessing and notarizing.

What if you become incapacitated but you're still alive?

Figuring out what to do with your assets after you pass away is a large component of estate planning, but generally, planning for the proper management of your financial and health care while you're alive is another major component. There are 3 broad avenues that may need to be used if you become incapacitated to the point where you are no longer able to express your wishes.

Medical Decisions

First, the Advance Health Care Directive may be needed to give proof to doctors or hospitals that the agent you've selected has the authority to make medical decisions for you. Without this, your family might run into conflicts about what you want regarding medical treatment.

Financial Decisions

Second, the Durable Power of Attorney may need to be recorded in the county where you own real estate or be provided to financial institutions where you have accounts so that your agent can transact on your behalf. This can be a huge benefit and help your family avoid the need to have a conservator appointed for you.

Successor Trustees

Third, if you've established a trust, the successor Trustee of your Trust may need to be called into action to take control of the trust assets so that they can continue to be used for your benefit. For those who have trusts, the assets held by that trust can only be utilized by those who have authority to do so, and the successor Trustee is the first in line. This also helps your family avoid the need for a conservatorship.

As such, the nature of an estate plan can be just as important while you're alive as it is after you pass away.