Monthly Archives: November 2014

Using powers of attorney in California

When people are engaged in estate planning, they often do not think about who will make important decisions on their behalf while they are still living but unable to make decisions due to illness, injury or being incapacitated. Setting up powers of attorney in the event an incapacitating event occurs can help individuals make certain their wishes are followed.

There are three important types of powers of attorney that people should consider having in place. A health care power of attorney give a designated agent the power to make decisions regarding treatment for a person. This is not the same as a living will as it can encompass treatment needs in the event a person becomes incapacitated due to illness or injury.

In addition, people should consider drafting a HIPAA power of attorney. Even when people have power under a health care power of attorney, medical professionals may be unwilling to provide important health information to a designated agent due to medical confidentiality laws. If an agent has a HIPAA power of attorney, this can be avoided.

Finally, a durable power of attorney that specifies who will make financial or business decisions on a person’s behalf can be very important. Durable powers of attorney are flexible and can be used for a single transaction or for a broad variety of financial and business needs.

Powers of attorney can help people ensure they have some control over their health care, financial and business needs in the event they become incapacitated. When people are planning how to handle their assets, they may wish to speak with their estate planning attorney about drafting powers of attorney documents.

Source: Forbes, “Three Powers of Attorney Everyone Needs“, Mark Eghrari, November 14, 2014

Contesting a California will

When a person dies, his or her will will be administered as written through the probate court in most cases. Courts generally presume that a written will is a valid statement of what the testator wished to happen. Judges will usually strictly follow wills unless an interested person is able to overcome the presumption of the will’s validity.

People may be able to successfully challenge a will in several situations. If they are able to prove to the court that the testator lacked testamentary capacity by being insane, senile or under the influence of substances at the time the will was executed, the contesting party may be successful. The same is true if the challenger is able to prove that the person was vulnerable and coerced into leaving his or her property to a manipulator.

The process is commenced by the challenger filing an objection with the court regarding the probate of the will. Upon filing, the court will schedule a hearing and issue a notice and summons. The challenger must then have copies of the objection, notice of the hearing and summons sent to all interested parties. Any party who wishes to answer the objection must file an answer prior to the hearing date. At the hearing, the court will hear evidence and issue its ruling regarding the validity of the contested will.

While it is often difficult to successfully challenge a will, it is possible to do so. People who wish to draft a will that will hopefully withstand a challenge may benefit by meeting with an estate planning attorney. Such an attorney can in some cases represent a client who is questioning the validity of such a document prepared by a family member.

Source: California Law, “Probate Code Section 8250-8254“, November 01, 2014