Monthly Archives: March 2015

Importance and Use of California Advance Health Care Directive

All California competent adults should consider signing a California Advance Health Care Directive.

In the aftermath of the Terri Schiavo case, most people recognize how important this estate planning document is to protect yourself and your loved ones.

In this document, you empower someone to make medical decisions for you if you become unable to give informed consent to your medical decisions. You name your first choice and your alternate choices.

Included in this document can be your wishes on such matters as:

1. Whether and when you want so-called “heroic measures” used to prolong your life if you were in a terminal condition;

2. Whether you want your health care agent’s authority to start now or only when you are unable to make health care decisions for yourself;

3. Whether you wish to be an organ donor and, if so, for what purposes you want the donations;

4. Whether and when nutrition and hydration may be withheld if you were terminal;

5. Whether you prefer home health care versus nursing home care, as long as home health care were appropriate;

6. Whether you prefer to be told the truth or whether you prefer not be told the details of your condition, especially if the news is bad;

7. Whether you prefer to be buried or cremated or whether you prefer for your health care agent to decide;

8. Whether your religious beliefs are to be considered;

9. Who should have visitation rights with you; and

10. What treatments you want (and don’t want) if you develop dementia or Alzheimer’s disease and lose the capacity for meaningful interactions.

Copies of your California Advance Health Care Directive should be given to your nominated agents, doctors, hospitals, and all health care providers.

Seriously ill patients may also want to confer with their physician about a POLST form (Physician Orders for Life-Sustaining Treatment). A POLST form states what kind of medical treatment patients want towards the end of their lives. Printed on bright pink paper, and signed by both a doctor and the patient, POLST helps give seriously ill patients more control over their end-of-life care. For more information, see:

Copyright James J. Phillips 3/24/15


Your family tree: its due process importance in estate administration, trust administration, and conservatorships

Due process and California law requires that your closest blood relatives* be notified by the person in charge of your estate if you died or became incompetent in each of these California contexts:

1. If probate is required because you died without a will, your administrator must notify your heirs*, as your heirs are those who would inherit. In some case where your spouse died before you and you had no children or descendants who survive you, this can include your spouse’s children (i.e., your stepchildren) or your spouse’s relatives.

2. Your heirs must also be notified if there is a probate of your will, even if your will does not leave your estate to your heirs and even if your executor is not an heir. In some case where your spouse died before you and you had no children or descendants who survive you, this can also include your spouse’s children (i.e., your stepchildren) or your spouse’s relatives.

3. And your heirs even have to notified by the trustee of your living trust, even if your living trust leaves nothing to your heirs.

4. If a conservatorship of your person or estate is required due to your incompetency, your heirs must be notified (even if you would not want them notified).

But what if no one knows the name or location of your children or your siblings or your niece and nephews or your cousins or your closest blood relatives? What if you kept as secret a child born outside of wedlock? What if you were estranged from some of your closest relatives? What if your administrator or executor or trustee or conservator cannot identify your heirs?

This can lead to the costly searches and delay, stress, and uncertainty.

This can be very problematic in cases where the person who is incompetent or died:

  • Was estranged from the family.
  • Kept as a secret the existence of a child born out of wedlock.
  • Had no spouse and no offspring, but had step children or in-laws from a deceased spouse.
  • Had as closest relatives persons whose existence was unknown by others.
  • Had a child who was “adopted out.”

California law expects the person in charge of your estate to attempt to identify and locate your heirs with:(1) Inquiry of the relatives, friends, acquaintances, and employers; (2) Review of appropriate city telephone directories and directory assistance; and (3)Search of the real and personal property indexes in the recorder’s and assessor’s offices for the county where the person was last known or believed to reside. (See California Rule of Court 7.52; Probate Code Sections 1206, 1821, 6402, and 16061.7.)

Just imagine how difficult this would be if you keep the identity and location of your relatives a secret. For this reason, consider placing the names and last known address of your heirs* with your original will and trust and other estate planning documents in your safe deposit box. And consider giving a copy to your estate planning attorney.

*Your heirs are often your closest blood relatives, such as your spouse or registered domestic partner and:

A. Your children and the offspring of any deceased children.

B. If none, your parents.

C. If none, the descendants of your parents.

D. If none, your grandparents or, if none, the descendants of your grandparents.

E. If none, the descendants of your predeceased spouse may be included.

F. If none, your next of kin.