Every profession has its own industry jargon, and lawyers can be one of the biggest criminals.
In our defense, some of the languages of law are actually Latin. However, understanding the terminology is important in knowing what you need in the right place and what you need to achieve your real estate planning goals.
Will vs. trust
I regularly receive calls from clients who want to update their wills and beneficiaries who want to know what their relatives’ wills are saying. Most of the time, they really talk about trust.
Wills: In California, if assets exceed $ 166,250 at the time of death (with a few exceptions), the property must pass probate in order to transfer those assets to the heir. This is true even if you are willing to carefully direct the recipients of your property. The terms of the will and the process for carrying them out are overseen and published by the Probate Court.
trust: It is very common to carry out a living trust to retain ownership of your property for your lifetime and for some time thereafter. A living trust is called this because it runs during your lifetime and “lives” after your death.
Assets titled in the name of the trust are not subject to probate proceedings. Instead, your designated successor is responsible for implementing the terms of your trust, including the distribution of assets. The conditions for your property distribution are set in the trust itself, not in the will. Therefore, the terms are private and are not subject to court oversight.
Pour a will. Even if you have trust, you need to be willing. The will is essentially that if you forget to title an asset in the name of the trust, or if you recently acquired the asset in your personal name, such an asset will be “poured” into the trust. It stipulates that.
Not surprisingly, this is called the “pouring will”. Therefore, the will does not indicate who will get what when, but simply “pass my property to my trustee and let him / her handle it” (including Latin). Often only in flashy legal terms). The real thing, what people really want to know, is trust-based, not a public document.
Adult guardianship and adult guardianship are also often confusing. In many cases, all that is required is the authority of a formal activated lawyer. However, in more serious cases, a court guardianship system may be required.
power of attorney: The power of attorney is a document that allows a party to act on behalf of another party. The adult guardianship system can be voluntarily provided by the primary party. For example, older parents who have mental abilities but are not willing to stay in control of their finances. Alternatively, if the person (usually by a doctor) determines that he or she cannot handle his or her finances, the authority of the lawyer will take effect.
The agent appointed under the power of attorney must have only the authority specified in the document and act in good faith for the benefit of the individual. After the principal’s death, the adult guardianship system will be void. Importantly, the enforcement of the adult guardianship system by the principal does not deprive the principal of any rights, even if the principal is declared incompetent by the doctor. Principals can continue to act on their behalf. It’s just that the agent can act on behalf of the principal.
Adult guardianship system: Legal guardianship is needed when it is necessary to prevent a person from acting against his or her interests, or when he or she is more seriously incapacitated when he or she is unable to act for him or her.
The power of attorney is a legal procedure in which the need for a power of attorney for a person and / or his or her property is determined with the appointment of a person to act as a power of attorney. When the adult guardianship system is introduced, the adult guardianship system becomes invalid and the adult guardianship system loses the right to act on its behalf.
Another area of confusion is the Medical Directive and the medical authority of lawyers, the “DNR” order, and the “POLST” document.
Healthcare directive. This is the same as the medical adult guardianship system. In California it is called the “Preliminary Medical Directive” and in some other states it is called the Adult Guardianship System for Health Care. Whatever the name, it’s who can make health care decisions for you if you can’t, and in general what decisions you want to make (pain relief, life, etc.) Related) is a document that states-sustained treatment, and hospice care). The representative appointed by the Medical Directive is also the party responsible for making decisions on post-mortem issues (organ donation, autopsy, morgue selection, cremation, burial, etc.).
DNR: A “no resuscitate” order, called DNR, is signed with your healthcare provider, but the agents specified in your healthcare directive are allowed to sign DNR on your behalf.
POLST: Finally, “POLST” is a “doctor’s instruction on life support”. This is a document (often pink) signed by a person who is usually seriously ill and frail and his doctor.
This is a document trusted by emergency medical personnel (who do not read or interpret medical directives) because it contains doctor’s instructions based on the patient’s medical preferences. POLST often contains a “DNR” instruction. Keep the POLST handy and visible in case emergency personnel answer the 911 call.
Each of these documents serves a specific purpose and should be regularly discussed, implemented and reviewed with lawyers and healthcare professionals.
Teresa J. Rhyne is a lawyer practicing real estate planning and trust management in Riverside, California and Paso Robles.You can reach her [email protected]
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