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Terminal Trust: Advanced Healthcare Directives In California

  • Published: March 30, 2023
Terminal Trust Advanced Healthcare Directives In California

In this article, you will learn:

  • What an advanced care directive is.
  • How the advanced healthcare directive differs from other end-of-life provisions in California.
  • What other documents besides your advanced healthcare directive you might need.

What Is An Advanced Healthcare Directive And What Does An Advanced Care Directive Do?

An advanced healthcare directive is when you choose someone to act on your behalf and make healthcare decisions for you, should you become incapacitated.

This is primarily used in the event you are hospitalized or in hospice to ensure that the person you trust has the written authority to make important medical decisions on your behalf.

How Does An Advanced Healthcare Directive Differ From A Last Will And A Testament And Durable Power Of Attorney?

While in some other states, the term ‘living will’ is used as an advance directive to provide guidance regarding medical decisions, in California law, the concepts are clearly distinct. The advanced healthcare directive resembles instead the power of attorney but regarding medical decisions on behalf of the signatory.

With an advanced healthcare directive, you are nominating someone to make healthcare decisions on your behalf and with a power of attorney, you are nominating somebody to make financial decisions on your behalf and giving them authority to actually act out those financial decisions.

Is A Last Will And Testament Also Referred To The Same Way In California?

Unlike an advanced healthcare directive vs a living will, a last will and testament in California allows you to distribute your assets to your beneficiaries.

Do I Need A Will Or Trust In Addition To My Advanced Healthcare Directive In California?

A last will and testament is perfectly suited for someone without real property and limited assets, for which a trust will not be required.  If you just have a car and a bank account and don’t have a lot of assets, then a last will and testament will typically suffice as those assets will likely not need to go through the probate process.

If you have real property and only have a will, however, your assets will be required to go through probate. This means that real property or anything that needs to transfer title will have to be distributed through the frequently long and often quite expensive process of probate court. That is where you would want a trust and full estate plan, rather than a will.

This might be easier to understand with some examples… Let’s examine two similar yet distinct cases:

First, consider someone’s late grandmother who, unfortunately, became incapacitated while living in a retirement community, and was not put on life support according to her Advanced Healthcare Directive.

She only had one car and one bank account before she passed away. She knew she wanted to give her car to one daughter, so she already put that name on her car. Since you can put beneficiaries’ names on the bank account directly, she did so.

All that remained was to have a simple will to distribute the rest of her belongings among her grandchildren. There would be no need, in her case, for a trust, and nothing would go through probate. A will was sufficient in that situation.

Second, let us consider the same grandchildren’s other Grandmother. Her advanced healthcare directive included the desire for maximum home care in the house she inherited from her father, rather than the house she and her late husband built in northern California.

As the titular holder of two properties in California, should she pass away without a full trust and estate plan, her children and grandchildren would have to go through the probate process. A court-appointed executor would be put in charge of distributing, and potentially dividing, the properties and assets according to her will.

With a full trust and estate plan, this grandmother could place the probate assets that her grandchildren would inherit into a trust — protecting their value and saving her grandchildren from the time-consuming probate process.

As you can see, end-of-life planning is about more than just picking the right person for your Advanced Healthcare Directive, it is also ensuring you have prepared the appropriate plans for your properties and assets.

For more information on Advanced Healthcare Directive In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (714) 881-5200 today.

September Katje, Esq.

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What Makes Attorney September Katje Uniquely Qualified To Represent You?

Ms. Katje earned her Juris Doctorate at California Western School of Law, San Diego, California, graduated Cum Laude and was a Dean’s Honor List recipient. She was also a recipient of the American Jurisprudence Award in Contracts I and Contracts II. Ms. Katje was a member of the Law Review and International Law Journal at California Western School Law, where she was an Associate Editor.

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