California’s New Right to Die Act and Incapacity What Does it Means to You?

On January 1, 2016, California’s Death with Dignity Act will become effective.   It is estimated that the Act will provide an option for 1 in 10 people to die with dignity in California.   

Why only 1 in 10 people?  The reason that this Act is expected to affect such a small percentage of California citizens is that the requirements under the Act are very strict.  To qualify under the Act, the patient must 1) have the mental capacity and 2) be suffering from a terminal illness—a disease that will, within reasonable medical judgment, produce death in six months.  Additionally, the patient must make 3 requests to a physician: two oral and one written plus at least 15 days must separate the two oral requests.  

So what is going to happen to the rest of us?  For me personally, I am hoping to die peacefully in my sleep after dinner and dessert which will include lots of ice cream.  However, I realize that my hope for a peaceful death may not be in the cards for me, as I know, and will unfortunately be the case for many others.  Sadly, the journey towards death can be long and arduous

That is the reason why incapacity provisions in your Trust are so important.    If a Trust is properly drafted,  it will give your successor Trustee specific instructions as what should be done in the event you are unable to care for yourself or make decisions for yourself.  Among other things, the Trust should be clear on the following:

1.      How will incapacity be determined?  Is it going to be determined by your personal physician or an attending physician at the hospital?  Do you want there to be a second opinion?

2.     How do you want your assets used during any period of incapacity?  Do you want to stay in your home and have in-home care?  Is there anyone else that you may need to provide for during your incapacity like a spouse or adult child?

3.     If you are not able to stay in your home, where do you want to be?  Near a specific child?  In a large assisted living home with lots of activities or a smaller home like setting?

4.     Do you want a care manager to visit regularly to evaluate the level of care that you receiving?  Do you want a private care giver in order to ensure that you have someone to take you to doctor appointments and other outings?

In conclusion, if you have a Trust, you should review its terms regarding incapacity.  If the Trust provisions are not what you want, you should consider amending the documents to correctly reflect your wishes and desires.  There is no question that the Death with Dignity Act is going to helpful for a few.  However,  most of us are going to have some period of incapacity prior to death.   We may not be able to control our physical or mental health, but we can control how our assets are used to care for us even during periods of incapacity.

If you would like me to review your Will or Trust, I see people every day for a FREE 30 minute consultation in Walnut Creek and Brentwood.

    This article provides only general legal information, and not specific legal advice.  Information contained is not a substitute for a personal consultation with an attorney.  LAW OFFICE OF JOAN M. GRIMES, PHONE (925) 939-1680   1600 S. Main Street, Suite 100, Walnut Creek, CA94513     © 2015 Joan Grimes

Thinking about Making Changes to Your Trust?: Deciding Between Amending and Restating

Are you thinking about making some changes to your Trust? When you want to make a change to your Revocable Living Trust (“Trust”), many clients ask whether they can simply amend the Trust or whether the entire Trust needs to be restated. Simply amending sounds easier, right? But, here are a couple things you should know.

Generally, if the change to the Trust is a minor change such as changing a successor trustee or adding additional language to clarify an ambiguity in the document, an amendment to the Trust is going to fine. Go for it!

However, if there have already been several amendments and the Trust is becoming difficult to read because of the layers of amendments, then a restatement of the Trust is preferred to avoid any confusion.

But, more importantly, a restatement is also recommended when the change raises a sensitive issue.  For example, if you decide that you want to remove a beneficiary or change the distribution scheme, a restatement is going to be a better option.  You might ask why this is necessary when an amendment sounds easier.  This is because the law requires that all of the estate planning documents must be given to all beneficiaries when you pass away. If your Trust is only amended, all of the amendments, together with the original trust, must be available to all beneficiaries. So for example, lets say after careful consideration you decide you want to remove your friend, Sally, from your Trust.  If you only remove Sally from your Trust by amending you trust, when you die Sally will receive a copy of you original Trust (which includes her as a beneficiary) plus the amending document in which you removed her from your Trust. (Awkward!) However, if the Trust is restated rather than amended, the restated Trust supersedes the prior trust and any amendments.  Therefore under this restated Trust, Sally will not receive any of your Trust documents since she is not included anywhere in your new restated Trust. 

The good news is that restating your Trust is simple and does not require your new restated Trust be funded again (ie you don’t need to record new trust transfer deeds for real property, change any bank accounts or other assets that are already in the Trust).  This is because the restated Trust can have the same name and date as your original Trust. Since the name and date of the restated Trust will be same as the original Trust, so you won’t need to fund your Trust again.

So what’s the point? If you have a Trust, you should review it every so often to make sure it still says what you want. If you decide you want to remove Sally or make another sensitive change, you should consider restating the Trust rather amending to correctly reflect your wishes.  If you would like me to review your Trust, I see people every day for a FREE 30 minute consultation in Walnut Creek and Brentwood. 

    This article provides only general legal information, and not specific legal advice.  Information contained is not a substitute for a personal consultation with an attorney.  LAW OFFICE OF JOAN M. GRIMES, PHONE (925) 939-1680   1600 S. Main Street, Suite 100, Walnut Creek, CA94513     © 2016 Joan Grimes