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Specialization Exam > Estate and Incapacity Planning 3 > Flashcards

Estate and Incapacity Planning 3 Flashcards

1
Q

PC 4026

A

Principal - natural person who executes a power of attorney

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2
Q

PC 4014

A

Attorney-in-Fact/Agent - granted authority to act for the principal

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3
Q

PC 4261

A

General POA - gives Agent broad authority in a number of legal matters.

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4
Q

Limited POA

A

Is limited to a particular asset or transaction.

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5
Q

PC 4124

A

Durable POA - continues to be effective even upon the Principal’s incapacity

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6
Q

PC 4121

A

Requirements of a POA

  1. Dated
  2. Signed by the principal or by another adult in the principal’s presence and at the principal’s discretion.
  3. Notarized or witnessed
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7
Q

PC 4122

A
  1. The witnesses are adults
  2. The attorney in fact cannot be a witness
  3. The witnesses either witness the signature or the principal acknowledges to the witness that he signed the POA
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8
Q

PC 4202

A

The principal may designate in one or more powers of attorney
When there are two or more agents - they must act unanimously

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9
Q

PC 4203

A

Designation of successor agents

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10
Q

PC 4204

A

Agent is entitled to reasonable compensation

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11
Q

PC 4152

A

Authority ends at the principal’s death

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12
Q

PC 4231 - 4234

A

SOC

  • Prudent person standard, but agent with special skill must observe higher standard
  • Duty to communicate and avoid conflicts of interest
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13
Q

PC 4230

A

Duty to Act

  • Agent has no duty to act, may refuse to act, and may resign
  • Agent has a duty to complete a transaction that the agent has commenced
  • Agent must act pursuant to POA terms
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14
Q

PC 4264

A

Actions requiring express authorization in the DPOA and in the Living Trust:

  1. Create, modify, revoke or terminate the trust.
  2. Fund a trust not created by the Principal.
  3. Make or revoke a gift of the Principal’s property.
  4. Exercise the right to make a disclaimer - caveat, if it would be a detrimental transaction for the principal.
  5. Create or change survivorship interests
  6. Designate or change beneficiaries
  7. Make a loan to the agent
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15
Q

PC 4265

A

POA cannot publish, amend or revoke the principal’s will

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16
Q

PC 4150

A

Modification of POA

  • In accordance with the terms of the POA and how it states that it can be modified
  • By an instrument executed in the same manner as the POA
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17
Q

PC 4151

A

Revocation of POA

  • POA may provide the method how you can do that
  • By a writing
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18
Q

PC 4153, 4154

A

Revocation of Authority of Agent

  • In accordance with the terms of the POA
  • Orally or in a writing
  • By Operation of Law - domestic partnership or marriage is terminated.
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19
Q

PC 4130

A

If there are multiple POA’s, the last dated POA will control

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20
Q

PC 4300

A

Third parties required to honor POA.

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21
Q

PC 4302

A

Third parties have right to seek reasonable appropriate proof - proof of identity, specimen signatures

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22
Q

PC 4401

A

Indemnity Clause - for any claims that may arise because of reliance on the POA

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23
Q

PC 4305

A

Affidavit - Declaration under penalty of perjury that the POA has not been terminated or revoked

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24
Q

PC 4406

A

Petition to compel to honor POA. Can lead to an award of attorney’s fees.

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25
Q

PC 4633

A

AHCD - Principal - natural person who executes POA for health care

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26
Q

PC 4607

A

AHCD - designated to make a health care decision for the principal

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27
Q

PC 4615

A

AHCD - care, treatment, diagnose or otherwise affect a patient’s physical or mental condition.

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28
Q

PC 4673

A

AHCD - Proper Execution

  1. Dated
  2. Signed by Principal or in the principal’s name by another adult in the principal’s presence and at the principal’s direction.
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29
Q

PC 4674, 4675

A

Must be notarized or witnessed by two persons who meet the requirements of PC 4674, 4675

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30
Q

PC 4675

A

If the principal is a patient in a SNF, then the patient advocate or ombudsman must also sign.

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31
Q

PC 4682

A

Authority becomes effective when the principal lacks capacity, unless stated authorized.

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32
Q

PC 4683

A

Agent may make health care decisions for the principal to the same extent the principal could make health care decisions.

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33
Q

PC 4684

A

The Agent must make decisions based on the principal’s instructions (if it is specific) or based on the determination of the principal’s best interest (if it is general)

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34
Q

PC 4741

A

The agent is not liable or discipline if decisions are made in good faith

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35
Q

With an AHCD, what does the agent not have the power to do?

A
  1. Commit the principal to a mental treatment facility.
  2. Authorize convulsive treatment, psychosurgery, sterilization or abortion.
  3. Place the principal in a secured perimeter facility ofr dementia patients.
36
Q

PC 4695

A

Revocation - May revoke all or part (other than the designation of an agent), at any time that communicates the intent to revoke.

37
Q

PC 4695, 4697

A

Terminate Authority of Agent (higher standard than health care directions)
This must be:
1. In writing
2. Informing the health care provider
3. By Operation of Law - if domestic partnership or marriage is terminated

38
Q

PC 4698

A

Conflicts

Last granted authority controls if there are conflicts between documents

39
Q

Under an AHCD, does the power continue after the principal’s death? If so, for what purposes?

A

Yes, for limited purposes - make organ donations, authorize an autopsy, direct the disposition of the principal’s remains, and authorize medical records.

40
Q

PC 4300

A

Health care providers must comply with instructions from agent if made by the patient.

41
Q

PC 4734

A

Limited exceptions - reasons of conscious or institutional policy

42
Q

PC 4766 and PC 4742

A

Petition to Compel

Intentional violation can lead to liability and damages that include attorneys fees

43
Q

PC 810 - 813

A

Codifies standards for the court to use. This is the Due Process in Competence Determinations Act

44
Q

PC 811

A

Deficits (at least one must be present to find incapacity)

  1. Alertness and attention
  2. Information processing
  3. Thought processes
  4. Ability to modulate mood and affect
45
Q

PC 811(d)

A

A mere diagnosis of a mental or physical disorder is not sufficient to make a determination that a person lacks capacity. There must be a finding that the condition causes a deficit which results in incapacity.

46
Q

PC 810(b)

A

Even if they have a mental or physical disorder - thye may be able to contract, marry, make medical decisions, executing wills and trusts

47
Q

PC 810(a)

A

It is a rebuttable presumption - all persons have the ability to make decisions, unless the court decides otherwise.

48
Q

PC 6100

A

Every adult of sound mind may make a will

49
Q

PC 6100.5

A

Low threshold

  1. Understand the nature of the testamentary act
  2. Understand the nature and situation of the individual’s property
  3. Understand relationships to living descendants, spouse, parents, and others whose interests are affected by the will
50
Q

PC 1871

A

Conservatee may still have capacity to make a Will

51
Q

PC 4609

A

Capacity to Make Health Care Decisions

  1. Understand his or her medical condition
  2. Understand the significant benefits and risks of the proposed treatment and its alternatives
  3. Make or communicate appropriate medical decisions
52
Q

PC 4658

A

The primary care physician determines if a patient lacks or has recovered capacity to make health care decisions

53
Q

PC 812

A

This is the highest standard of capacity

  1. Must be able to communicate the decision and understand the following:
    1. The rights, duties and responsibilities created by or affected by the decision
    2. The probable consequences for the decision maker and the persons affected by the decision
    3. The risks, benefits, and reasonable alternatives involved in the decision
54
Q

PC 1810

A
  • Proposed conservatee can nominate a conservator in writing if able to from an intelligent preference.
  • Nomination of conservator may be included in a DPOA or AHCD, or a separate writing (PC 1810, 4126, 4127)
55
Q

Are all adults considered capable of handling their own affairs?

A

Yes, unless the Judge determines otherwise.

56
Q

PC 1812

A

Order of Priority

  1. Spouse or Domestic Partner
  2. Adult Children
  3. Parent
  4. Sibling
57
Q

PC 1812 - which are subordinate?

A

An individual has nominated a third party - example, the adult child nominates a third party but that third party will be subordinate to any other of the adult children, if applicable.

58
Q

PC 1812 - Nomination in a separate writing

A

Only a spouse or domestic partner can nominate in a separate writing.

59
Q

PC 1500

A

Nomination of a Guardian of the Person and/or Estate

  • One parent can make the nomination if the other parent joins, consents, is dead, or lacks capacity.
  • Adoptive parent has the authority, but legal guardian does not
60
Q

PC 1501

A

Parent or other person may nominate a guardian for the property that the minor receives.

61
Q

Indian Child Welfare Act

A

There are other requirements

62
Q

Alternatives to Custodianships

A
  • Monies held in the blocked account
  • Monies transferred to a custodian
  • If the assets are held under $20,000, the court has more control over how this money will be held so long as it is in the best interests of the child.
  • If the assets are less than $5,000 can be given to parent for minor
63
Q

PC 3900 - 3925

A

California Uniform Transfers to Minor Act

64
Q

Nomination of Custodian

A
  • Court Order
  • Will or Trust
  • Life Insurance designation
  • Only one person can be custodian for one child
  • Similar to the powers and duties of the trust (PC 3912-3913) - must provide an accounting
65
Q

First Party Special Needs Trusts

A
  • Contains the assets of an individual with a disability
  • Must be irrevocable
  • Provides funds for living expenses not covered by other income sources
  • Maintains eligibility for public benefits
  • Must be for the sole benefit of a disabled person who is under age 65.
  • Upon death, payback of any Medi-Cal benefits.
66
Q

Special Needs Trust

A
  • Can be created by an individual, parent, grandparent, legal guardian or the court
  • Doesn’t need to be irrevocable
  • Provides funds for living expenses not covered by other income sources
  • No state reimbursement for Medi-Cal
67
Q

Third Party SNT for a spouse

A
  • It must be established by will
  • Beneficiary cannot have authority to revoke trust and cannot direct the use of the trust assets for support and maintenance.
68
Q

Pooled Special Needs Trust

A
  • (d)(4)(c) trusts
  • Trusts pool the resources of many beneficiaries, and those resources are managed by a non-profit association, that uses separate accounts of pooled assets.
  • No age restriction on beneficiary
  • Excess funds must remain in pooled trust, otherwise subject to payback rules.
69
Q

Disclaimer - CA Requirements

A
  • In a writing
  • Must be filed within a reasonable time after the person acquires knowledge of the interest
  • Is irrevocable
70
Q

Disclaimer - Federal Requirements

A
  • Must be in writing
  • Must be filed within 9 months
  • Recipient must not accept any interest
  • The interest must pass without any direction from person making the disclaimer
71
Q

List the Needs Based Benefits

A
  • SSI
  • Medi-Cal
  • VA (pension)
  • Section 8 (HUD)
72
Q

Entitlement Benefits

A
  • SSA
  • SSDI
  • Medicare
  • VA (disability)
73
Q

Definition of disability

A
  • Inability to engage in any substantial gainful activity (SGA - employment) due to a physical or mental impairment.
  • It is expected to last for at least 12 months
74
Q

In Kind Support / Maintenance

A
  • Shelter - rent, mtge, real property taxes, heating, gas
    • Does not include phone and cable bills
  • Food - groceries, coffee, bottled water, alcohol
    • Does not include paper products, soap, toiletries, and pet food
75
Q

SSI Assets - Exclusions

A
  • Home - if residence or intends to return to it
  • Auto - up to 4,500
  • Personal effects and household goods
  • Wedding and engagement rings
  • Property for medical care
  • Tools of trade or business
  • $1,500 face value insurance policy or term life insurance
  • Burial space and $1,500 burial fund
  • Up to $100,000 in an ABLE account
76
Q

SSI Excluded - “personal effects”

A 
Books and magazines
Telephone
TV, radio and cable service
Musical instruments
Travel and education
77
Q

2021 SSI Income Limits

A
  • Single - $794

* Single with an eligible spouse - $1,191

78
Q

How do they calculate Medi-Cal income limits?

A
  • Since - 1,271 (individual) and 1,720 (couple)

* It is based on a share of cost

79
Q

Medi-Cal Strategies - spending down strategies

A
  • Paying down or paying off a mortgage
  • Purchase a home
  • Home improvements
  • Pre-paid funeral plans
  • Purchasing a car
  • Purchasing furniture
80
Q

Medi-Cal Transfer Penalties

A

*30 month “Look-Back” rule

81
Q

Elder Adult Abuse and Dependent Adult Civil Protection - What is the SOL?

A

*4 year DOL after plaintiff discovers the abuse

82
Q

Physical Abuse / Neglect - what is the standard?

A

Clear and convincing evidence

83
Q

Financial Abuse

A

Preponderance of the evidence standard

84
Q

When are treble damages available?

A

*Unfair or deceptive acts or practices of unfair methods of competition

85
Q

Types of Restraining Orders

A
  • Elder Abuse RO - 65 years or older/dependent adult; no relational requirement - restraint on conduct, stay-away orders, firearm relinquishment, move-out orders
  • DV - no age requirement; relationship
  • Civil Harassment - no age requirement; no relationship requirement

Specialization Exam (9 decks)

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