What Is an Estate Plan and Why Do I Need It? (Part I)

An estate plan is typically four legal documents created to preserve and protect your choices of what happens to you and to all of your stuff if you can’t make health care decisions or manage your assets due to a disability or if you pass away. Based on these two occurrences, disability and death, you need certain documents to protect yourself and your loved ones. Part I of this blog series discusses disability and introduces the first two documents in your estate plan. Part II will discuss death and how the other two documents handle the assets in your estate after your passing.

Disability

A disability can occur in many different ways. A disability means that you are physically or mentally unable to take care of yourself or make your own medical or financial decisions. This can be due to the development of dementia, or Alzheimer’s disease, or even because an unfortunate accident has left you in a coma. 

Normally, you might think that your family, your spouse, or your children should easily be able to take over your affairs and make decisions for you, but that’s not always the case. The legal system in California is meant to protect your information and your assets from people who might want to take advantage of you, steal your identity, or gain access to your accounts. But, it can also work against those people who might be trying to help you in your time of need. This includes your family, and in certain situations, even your spouse.

If you do not have an estate plan in place and your family needs to help you, they will likely need to go to Court and request what is called a Conservatorship. A conservatorship is not an instant process. Your family member is going to have to spend time and money dealing with court proceedings, while at the same time worried about you and the delay it is causing when there might be urgent decisions that need to be made for your wellbeing or your family’s welfare. Having an estate plan in place could avoid this court delay.   

Estate Planning for Disability

There are two key documents you need when it comes to giving someone the ability to help you out if you should become mentally or physically unable to take care of yourself or make your own medical or financial decisions.

The first document is the Advance Health Care Directive. This document allows you to appoint someone you trust to make medical and personal care decisions and to take care of you should you become disabled. With this document in place, your family usually will not have to ask a Court for authority through a Conservatorship of the Person before they can help you in your time of need.

The second document is called a Durable Power of Attorney. This document gives someone you trust the ability to handle your financial affairs and to help take care of your family by making sure that bills get paid, such as rent. With this document in place, your family usually will not have to ask a Court for authority through a Conservatorship of the Estate before they can take control and manage your personal affairs.   

These two documents work together to help ensure that you and your family are taken care of in your time of need should you become disabled. To read about the necessary estate planning documents before you die, see Part II of “What Is an Estate Plan and Why Do I Need It.”

This blog provides a general overview of estate planning based on current California law. Each individual estate planning situation requires an independent analysis of the specific facts and circumstances involved. [Disclaimer]

Our estate planning team at Naimish & Lewis can advise you on estate planning, trusts and estates administration, and probate related matters such as probate administration, conservatorship and guardianship. To schedule an initial consultation with an attorney at our firm, please contact us