Many people confuse the term “Living Will” with “Living Trust.”  A “Living Trust” can be used in place of a traditional Will to dispose of property upon a person’s death without the beneficiaries going through the lengthy, onerous, and expensive court process of probate.  We have previously written about the benefits of Living Trusts.  (See blog below.)  
        A Living Will, on the other hand, is a Directive to Physician under the former California Natural Death Act.  This directive is a document which directs that life-sustaining treatment will be withheld or withdrawn if you are terminally ill or permanently unconscious and the administration of life-sustaining procedures would only prolong the dying process or unconscious condition.  Individuals often choose this because they wish to avoid the misery of artificially prolonging death.  Under the new Health Care Decisions Law, the Living Will provisions are now contained in a document called an Advance Health Care Directive (which was formerly called a Durable Power of Attorney for Health Care and which is the subject of another article).  The Advance Health Care Directive allows you to do more than the Living Will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or in a coma.  
An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation in which you are unable to make your own decisions, not just when you are terminally ill.  An Advance Health Care Directive allows you to appointed a trusted person (or persons) to make decisions for you when you are incapacitated.  
        The good news is that you don’t necessarily need a lawyer to prepare an Advance Health Care Directive.  Forms which you can fill out are available from doctors, hospitals, and attorneys.  We include one in our Estate Planning Package.  If you do your own form, make sure the form you use is the most recent version.  
        Another document you should be aware of is a DNR or Do No Resuscitate Order.  A DNR is a formal request to not have cardiopulmonary resuscitation (CPR) administered if your heart stops or if you stop breathing.  Your DNR order should be in your chart at a hospital to let the doctor know you do not want to be resuscitated if this is your wish.  
        These are tough issues to think about, but as usual, prior planning can make a tragedy easier to deal with on many levels.  
        Contact William or Debra with questions.  

Restraining Orders

“I’m going to get a restraining order!”  We hear this phrase bandied about frequently.  What kinds of restraining orders are there and how do you get one?  The typical restraining order is the Domestic Violence Restraining Order which can be obtained against a person whom you are married to, were married to, live with, used to live with, are related to (even by adoption), are an in-law to, date, used to date, are engaged to, used to be engaged to, or are parents together of a child under the age of 18 years.  In a Domestic Violence Restraining Order you can get orders that the other person: move out, stay away from you, not bother you, and not contact you.  You can also get orders for child custody, child support, payment of debts, payment of attorneys fees, possession of property, payment of debts, and others.  You must present detailed written evidence of the abuse that occurred,  any injuries received, and why the orders requested are necessary.  The restrained person will automatically be ordered to sell or turn in any firearms he or she owns or has possession of.  If the facts presented are strong enough, the Judge will grant the order immediately to be effective until a hearing.  This is called a Temporary Restraining Order (TRO).  At the hearing the Judge can continue the orders.  If a TRO is not granted on an emergency basis, the Judge can grant the Restraining Order at the hearing.  After the hearing, the Restraining Orders will usually be granted for 3 years. 

If things are really serious, you can call the police 24/7 to get an Emergency Protective Order (EPO) that will last for 5 court days or 7 calendar days.  This gives you time to apply for a Domestic Violence Restraining Order.  An EPO can be issued against the same persons as a Domestic Violence Restraining Order.

If the person you want the restraining order against is not one of the people listed above for a Domestic Violence Restraining Order, you can apply for a Civil Harassment Restraining Order.  You must describe what your relationship is, such as landlord/tenant or neighbors.  Upon presentation of sufficient facts, you can get orders that the person not bother you, not contact you, and stay away from you (and your residence, place of work, vehicle, etc.).  If you want a TRO (issued before the hearing) you must state that you will suffer great and irreparable harm before hearing and explain why.  

Remember, although a person may be restrained by a Court Order from bothering you, that does not stop them from violating the order.  You must take precautions yourself commensurate with the threat potential.  If the restrained person violates the order, they can be sentenced to jail time after they are apprehended.  The sentence can be up to five days PER violation.  

Please e-mail questions or future blog post ideas to Debra@CrawfordandCrawford.com.  This column is intended to be informative and thought provoking and is not to be relied upon as legal advice in any particular situation.           

(Reprinted with Permission from Carmel Valley Newsletter.  Thanks Jamison!) 

Living Trusts Explained

A Living Trust is an entity which is generally created for estate planning purposes.  A “Settlor” transfers assets to a “Trustee” who holds and administers the assets pursuant to the terms of a contract called a “Trust Agreement” or “Declaration of Trust.”  The Settlor(s) can be, and often are, the Trustee(s).  The Trust document sets forth various provisions including the powers of the Trustee(s), the disposition of the assets of the Trust, and the identity of successor Trustees.  

The Trustee(s) normally have the same powers over the property as an individual owner does so that a person’s ability to manage his or her assets is not impaired.  Usually, the Trust assets (and income therefrom) are available to the Settlor(s) during the lifetime of the Settlor(s). Upon the death of the Settlor(s) the Trust document states how the assets should be distributed.  The assets can be distributed outright – free of trust – or held in Trust as desired for each beneficiary.  In the Trust document, the Settlor(s) states the person(s) or entity who will serve as Trustee(s) upon the death or incompetence of the Settlor(s).  This can eliminate the need for a conservator of the estate of the Settlor(s).  

The use of a Trust in an estate plan can eliminate the need for assets to go through a court probate of the assets.  This saves time and money in most instances, although now there is a requirement that heirs and Trust beneficiaries be given notice and a specific amount of time to contest the provisions of the Trust.  

It is important to note that the assets must be properly placed in the Trust for the Trust to function as intended.  This generally means that the title to the property of the Trust must be transferred into the Trust name.  The owner of the property would be, for example,  “John Jones, Trustee of the Jones Family Trust.”  

Please e-mail questions or future blog post ideas to Debra@CrawfordandCrawford.com.  This blog is intended to be informative and thought provoking and is not to be relied upon as legal advice in any particular situation.

(Reprinted with Permission from Carmel Valley Newsletter.  Thanks Jamison!)

Does Common Law Marriage Exist in California?

People often tell us that they have a common law husband or wife.  They are surprised to learn that California does not recognize “common law” marriage.  Common law marriage began in England in medieval times when officials were not readily available to perform marriage ceremonies.  A couple that intended to be husband and wife were deemed to be so by “common law.”  This carried over to America in frontier times when a couple could be considered to be married without the formalities of a license and ceremony.  

In the United States today only 11 states and the District of Columbia recognize common law marriages.   These states are: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah.  Three more states recognize common law marriages if they are formed before a certain date.  They are Georgia (if created before January 1, 1997), Idaho (if created before January 1, 1996), and Ohio (if created before October 10, 1991).  Additionally, New Hampshire recognizes common law marriages for inheritance purposes only (not for divorce).  

Each state has a different set of circumstances which must be proved before a common law marriage will be considered valid.  In general, these factors are: an intent to be married, cohabitation for a certain period of time, and holding themselves out as husband and wife (for example, referring to the other as their husband or wife, filing joint tax returns, using the same last name).  Common law marriages only apply to opposite sex couples.  (California does have Domestic Partnerships for same sex couples and opposite sex couples over the age of 65 – look for our future article!)

Interestingly, if you live in a state which does not recognize common law marriage, but used to live in a state that DOES recognize common law marriage, the state you live in may have a common law marriage under the law of the other state.  
Also, remember couples who have lived together may have a palimony or “Marvin” action against the other party upon their breakup.  
 
The issue of whether a common law marriage exists becomes relevant upon either death or divorce.  The existence of the marriage must be proven to the court using the factors of the particular state.  In case of a divorce situation, the parties will then need to proceed with legal divorce.  So – as in the case of traditional marriages – it is easier to get into the marriage than to get out of it!  

Please e-mail questions or future blog posts to Debra@CrawfordandCrawford.com.  This blog is intended to be informative and thought provoking and is not to be relied upon as legal advice in any particular situation.

(Reprinted with Permission from Carmel Valley Newsletter.  Thanks Jamison!)