Facing a disabling health condition is a terrifying prospect - one that raises a lot of (often overwhelming) questions. Not the least of these is planning for what happens in the event of incapacity. To decipher the answers, it’s helpful to have good legal counsel that you trust to guide you through the process of answering (and legally solidifying) your loved one’s wishes in both life and death to ensure they will be honored.
In this article, we’re going to explore the glossary of terms you may come across in your legal planning for incapacity. Please feel free to bookmark and come back to this page to review before your next meeting.
Glossary of Terms: Legal Planning for Incapacity
Within this glossary, you’ll find many terms italicized. Italicized terms indicate that there is a matching definition for that term within this glossary.
Advance Health Care Directive. An Advance Health Care Directive is a document in which you can: 1. Instruct your physician as to the kinds of medical treatment you might want or not want in the future (in many states, this is called a living will); 2. Designate someone you trust to make medical decisions for you in the event you are unable to make those decisions yourself (in many states, this is called a Durable Power of Attorney for Health Care, or just a Power of Attorney for Health Care) Click here to view California’s Advance Health Care Directive Instruction (and ensure you get one that is within the laws of each state you frequent).
Attorney-in-Fact. The person named in a Durable Power of Attorney to act as an agent (i.e. your designated trusted person named in your power of attorney(s)). This person need not be an attorney.
Beneficiary. An individual who receives the benefit of a transaction. For example, you can designate a beneficiary of a life insurance policy, a beneficiary of a trust, or a beneficiary under a will.
Conservatee or Ward. The incapacitated person for whom a conservatorship or guardianship has been established.
Directive to Physicians. A written document in which an individual states his or her desire to have life-sustaining procedures withheld or withdrawn under certain circumstances. This document must meet certain requirements under the law to be valid. It is a type of Advance Health Care Directive.
Durable Power of Attorney for Health Care. A Durable Power of Attorney for Health Care is a type of Advance Health Care Directive. It is a document in which an individual nominates a person as his or her agent to make health care decisions for him or her if he or she cannot give medical consent. This document can give the agent the power to withdraw or continue life-sustaining procedures.
Durable Power of Attorney for Asset Management. A document in which an individual (the “principal”) nominates a person as his or her agent (attorney-in-fact) to conduct financial transactions on his or her behalf. This document can be either “springing,” which means that it is effective only upon the principal’s incapacity, or “fixed,” which means that the document becomes effective when it is signed.
Executor. The individual named in a will is responsible for administering an estate during probate. The Executor is the person responsible for making sure all taxes and other expenses are paid and distributing the property of the deceased person following the letter of the will.
Federal Estate Taxes. A federal tax (up to 40% as of 2021) is due upon the inheritance of an estate. This tax is calculated on the value of the deceased person’s estate at the time of death. There may be additional state taxes levied on top (up to 20% of the estate), though California - as of 2021 - is not one of the states with an additional estate tax.
Health Insurance Portability and Accountability Act of 1996 (aka HIPAA). HIPAA is federal legislation that was designed to limit the informal communication of information from doctors and other health care providers.
In-Home Supportive Services (IHSS). A program in California that pays for non-medical services for persons who meet certain financial criteria and who could not remain safely at home without such services.
Irrevocable Trust. A trust that has terms and provisions which cannot be changed.
Joint Tenancy. A form of property ownership by two or more persons designated as “joint tenants.” When a joint tenant dies, his or her interest in the property automatically passes to the surviving joint tenant and is not controlled by the will of the deceased joint tenant and is not subject to probate.
Life Estate. An interest in property that lasts for the life of the person retaining the life estate. When a person who has a life estate interest dies, the property passes to the person holding the remainder interest, without the need for probate.
Living Will. A written document in which an individual conveys his or her desire to die a natural death and not be kept alive by artificial means. The wishes in this document are not legally enforceable in California unless they meet California’s criteria for a living will.
Long-Term Care Insurance. Long-Term Care Insurance is private insurance which, depending on the terms of the policy, can pay for home care, or care in an assisted living facility or skilled nursing facility.
Medicaid. A state and federally financed program that provides medical care to low-income persons. In California, it’s called Medi-Cal.
Medicare. A federal medical coverage program for persons who are over 65 years old or who are disabled. It is funded by Social Security deductions and has no income or resource restrictions. It does not pay for long-term custodial care.
POLST. (Portable Medical Orders) For the seriously ill or frail. A medical order form that travels with you. Part of advance care planning, which helps you live the best life possible. Communicate with your medical provider about your medical condition, treatment options, and what you want.
Probate. The court proceeding that oversees the administration of a deceased person’s estate. Wills are subject to probate; living trusts (if properly funded) are not.
Revocable Living Trust. A device that describes a specific property, names a trustee (who manages the property), and names a beneficiary who receives benefit from the trust. A living trust is an effective means of avoiding probate and providing for the management of assets. It can be revoked by the person who created it during that person’s lifetime.
Social Security Retirement Benefits. Benefits, which eligible workers and their families receive when the worker retires. The worker must work for a specified period at a job that is covered by Social Security in order to be eligible for benefits. A worker must be at least 62 years old to receive retirement benefits.
Social Security Disability Benefits. Social Security benefits are payable to disabled workers and their families.
Special Needs Trust. A specially drafted trust that provides a fund to supplement the governmental benefits of a beneficiary while not affecting that beneficiary’s eligibility for public benefits.
Supplemental Security Income (SSI). A federal program that provides cash assistance to the elderly, blind, and/or disabled who have limited income and resources.
Testator. A person who creates a will.
Trustor (Settlor). A person who creates a trust.
Trustee. The individual responsible for managing the property in the trust for the benefit of the beneficiary.
Will. A document an individual drafts and signs to declare how he or she wants his or her estate administered and distributed upon death. It must conform to certain legal requirements in order to be valid. The terms of a will become operational only upon the testator’s death.
For More Information
If you provide regular care to your loved one, we at CRC Orange County are here for you. We invite you to check out our library of information for family caregivers by clicking here for further reading and resources. You are also welcome to give us a call at 800-543-8312 to find out more about how we can support you in your caregiving journey.