Shafae Law

Shafae Law

Shafae Law is a boutique law firm providing comprehensive estate planning, trust, estate, probate, and trust administration services located in the San Francisco Bay Area.

Filtering by Tag: power of attorney

What is... a Power of Attorney?

This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.

At its core, a power of attorney is the legal authority to act for another person. It allows someone to “step into the shoes” of another person.

There are generally two types of powers of attorney relevant to estate planning: medical and financial. A financial power of attorney is sometimes called “durable power of attorney for financial management,” or just “durable power of attorney.” The medical power of attorney is sometimes called the “advance healthcare directive”, “healthcare directive”, or “living will”.

A power of attorney gives someone the power to make decisions on your behalf when you either can’t do so yourself or don’t want to do so. This may arise when you are incapacitated or elderly; it may also arise if you are out of the country and need someone to call your bank for you, or sign a check for a contractor, or something similar.

The key is to ensure that you have given someone the power of attorney in advance of when you need them to act. Once you are deemed incapacitated, it’s too late to sign a power of attorney. Without the necessary powers of attorney in place, someone will need to go to court to obtain the legal authority to act on your behalf in a time of crisis. Going to court always involves time, expense, and the public nature of court can sometimes be humiliating for the person incapacitated.

So when should you have a power of attorney? Now.

Contact us for a free consultation.


Why Hire an Attorney Instead of an Online Provider?

Most estate planning attorneys frequently hear some form of this question: can’t I just do this myself online?

You certainly can create your estate plan yourself. And it’s pretty simple and affordable online.

In our experience, though, the most frequent response we get during a consultation is “I hadn’t thought of that!” To us, that’s what an attorney brings to the proverbial table. Attorneys ask questions to learn the nuances of your particular family dynamics, your goals, and any situations that you may not have thought about. Also, attorneys have the benefit of experience dealing with many other estates, and bringing that experience into planning your estate. This is not about the value of your assets, it’s about understanding goals, making sure you have documents in place that reflect what you want, applying current law, and avoiding potential pitfalls.

Some clients ask us to do a “trust review,” which means looking at the will or trust they already created because they want to modify some aspect of it. Clients are often surprised to see that the will or trust they created online isn’t going to do what they intended it would do. With estate planning documents, wording is the key to everything. With computer generated trusts and estate planning documents, a word or phrase in the wrong place can make the difference between your child being able to use her inheritance toward college education and having to go to court to “unlock” her inheritance because there was a badly worded restriction placed on it. There’s no such thing as a cut and paste estate plan; your life and your family are unique and your estate plan should reflect that.

We’ve also been on the other side of estate planning—the trust administration and probate side that takes place after someone has passed away. We know that you and your loved ones should have the space to grieve instead of trying to interpret the terms of a trust or navigating the probate process. We are here to ensure that you have the peace of mind that an expert is here to assist you through this tough time.

And we’ve been in the in-between—incapacity. We know what it’s like to walk into a bank or call the insurance company with your loved one’s estate planning documents to try to assist your loved one. We know the reality of what the bank or insurance company is going to say to let you get that done. An attorney ensures you have what you need so you can avoid frustration and don’t need to go to court.

Which gets us to one of the main components of hiring an attorney—the attorney-client relationship. When you retain an attorney, that attorney owes you certain duties. Some are the duty of confidentiality, the duty of loyalty, the duty of competent representation, and the duty of zealous advocacy. If a lawyer breaches any of its duties to a client, the lawyer can be held accountable. Lawyers are required to uphold very high standards when it comes to representing clients and their interests. When you use an online service, no attorney-client relationship is formed. No duties are owed to you. You (or your loved ones) cannot hold anyone accountable if things do not turn out how you wanted them to. All you have is a document that you drafted.

That’s the key: hiring an attorney gives you peace of mind through expertise and experience. An attorney will be there in times of crises, when an online provider will not.

We think that we would be those attorneys to give you peace of mind in your estate planning; and if you’d like to find out more, contact us for a free consultation.

What is... Incapacity?

This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.

When people talk about “estate planning,” many times the focus is on death. However, there is another event that we recommend planning for: incapacity. The first thought people have about incapacity is that it means being in a coma. To many people’s unfortunate surprise, incapacity can and will happen under much broader circumstances.

  1. Incapacity can be a temporary condition

If something happened while you were under anesthesia and someone needed to contact your health insurance company or withdraw money from your bank account, do you have any documents in place to allow someone to do that? Most people don’t. Or what if you had a bad reaction to prescribed medication? Who has the legal authority to act on your behalf? If you’re married, and you’re relying on your spouse to step in, being married does not automatically allow your spouse to do these things for you.

We had a client recently who had a bad reaction to medication. He had to go to the hospital and was not exactly coherent during that time. Additionally, he did not WANT to have to make financial and healthcare decisions during that time. He did not feel able to do that. And, frankly, he had more important things to focus on. He’s fine now! But during that time period, he was incapacitated. He was very happy to have documents in place to allow for someone else to handle those other issues on his behalf.

2. Incapacity can happen suddenly

Think of any car accident you saw on your way to work. The people involved did not plan for that accident to happen. One of the people may have been hospitalized either short term or longer term, during which they may have been incapacitated. They certainly didn’t plan on needing the use of their powers of attorney that day, but that’s why it’s important to plan ahead.

3. Incapacity can be longer term, or even permanent

Yes, incapacity can also involve a coma or dementia or any number of conditions that simply do not improve. Some of these conditions can be seen from a distance away (e.g. a slow onset of dementia), and sometimes they can’t be (e.g. a stroke, or catastrophic brain injury).

The problem with waiting to know that a future incapacity will occur (like dementia/Alzheimer’s disease) before executing estate planning documents is that the person must have capacity to execute documents. If there is any question about an individual’s capacity to execute documents, it may require a doctor’s confirmation and/or further legal proceedings. It’s a bit of a catch-22: when we have capacity, few people feel like they’ll ever lose capacity. When you’re already incapacitated, it’s too late. Your loved ones are stuck.

Bottom line: plan while you can. Once you have your plan in place you have the peace of mind in knowing that you and your loved ones will be taken care of properly. Contact us for a free consultation to help you construct the plan that’s best for you.


➤ LOCATIONS

303 Twin Dolphin Drive
Suite 600
Redwood City, California 94065

12100 Wilshire Boulevard
Suite 800
Los Angeles, California 90025

 

Office Hours

Monday - Friday
9AM - 5PM

☎ Contact

info@shafaelaw.com
(650) 389-9797
(310) 526-0298