Posts By: Gene Osofsky

Q: I just heard that Governor Newsom has proposed the reinstatement of the former asset test to qualify for Medi-Cal benefits. Is this true and, if so, what does this mean for seniors who might need long term care in the future? Is there anything we should do now to plan for this change?

A:  Yes, you heard correctly. Just last week, in his proposed Budget Bill submitted to the Legislature, Governor Newsom proposed that California return to the decades-old “resource caps” necessary to qualify for Medi-Cal.  Here is a summary excerpt from that proposal:

“Medi-Cal Asset Test Limits—Reinstatement of the Medi-Cal asset limit for seniors and disabled adults of $2,000 for an individual or $3,000 for a couple, effective no sooner than January 1, 2026. Estimated General Fund savings are $94 million in 2025-26,  $540 million in 2026-27 and $791 million ongoing, inclusive of IHSS impacts.” 

Of note is that this proposal both recognizes budget constraints in California and likely anticipates “cost-cutting” at the federal level, as the federal government pays roughly one-half of the cost.  As I write this, the Congressional Budget Bill, which includes dramatic cut-backs to MediCaid (the name the rest of the country gives to what we call ‘Medi-Cal’) is still pending in Congress. While its status in its present form is presently uncertain, it would seem that – at least in part– our own Governor wishes to be pro-active in order to keep California on sound fiscal footing.

That said, the change, if implemented, would be dramatic for the disabled and seniors over age 65, i.e. the “traditional” Medi-Cal population. As many readers know, California fully abolished the “asset limit” for Medi-Cal eligibility for this group, effective in 2024, enabling many more senior and disabled Californians over the last year and a half to seek the medical care, facility care and in-home care they needed without bankrupting their families. The proposed changes would now be dramatic for these individuals and families. When I last checked, nursing homes in our area were charging as much as $19,000 per month for care on a private pay basis. And these changes would affect, not only seniors, but also the disabled of any age who need the care that Medi-Cal now subsidizes.

My advice to readers and their families is to anticipate the full implementation of these changes and take the following steps now:

1) Make sure that your estate planning documents are fully compliant with “time-tested”  Medi-Cal planning strategies, long employed by Elder Law attorneys under the old rules.  For example: these strategies would include express authorization to your trusted agent, to undertake what I call “strategic gifting” to trusted family members,  if you were then incapacitated and could not do so yourself. Where appropriate, this strategy would help accelerate your own Medi-Cal eligibility, without spending away a lifetime of savings on your own care and potentially impoverishing your well spouse or other family members. Unfortunately, many estate plans that we have reviewed over time contain restrictions on “gifting”, which would undermine this strategy, and often those restrictions are written in “legalese” so that their full import is not apparent to the signers of these documents. Other strategies involve the use of specialized trusts, and Petitions to the Superior Court for Court Orders to facilitate Medi-Cal eligibility, among others.

2) Brace for the potential change in the law on or about January, 2026. For those currently on Medi-Cal, especially those in nursing facilities, this change and the probable need to re-qualify under the new rules could some as quite a shock.  Be mindful of this potential change in the Medi-Cal rules and consider pro-active planning well before then.

3) Assess your own financial ability to meet the cost of long term care from your own, private savings and resources and, if you can qualify at reasonable cost, consider the purchase of long term care insurance. Unfortunately, the prospect of qualifying for reasonably priced policies diminishes as we age or our health changes, and so this option may not be suitable for everyone. Even if you can qualify, know that it is unlikely that such a policy will subsidize the full cost of  care, still requiring the expenditure of your own savings to make up the difference.

4) For those readers now under age 65, and who presently qualify for Medi-Cal under the federal “Affordable Care Act” (the “ACA”) implemented during the term of President Obama, wherein eligibility is based only upon income, know that under present proposals your eligibility for Medi-Cal under ACA rules will cease when you reach age 65, unless you have strategies in place (such as the above) to continue Medi-Cal coverage under the then reinstated Medi-Cal asset limit change.

___________________

Reference: Here’s a link to the full Budget Proposal, referred to as the “May Revision”. The Above excerpt appears on page 37:
https://ebudget.ca.gov/FullBudgetSummary.pdf

*************

Reference:  Here is the State Assembly’s response, essentially rejecting the Governor’s proposal and instead reinstating the more moderate resource caps of $130,000 for an individual and $195,000 for a couple. See page 5 of the Assembly Budget Committee. Subcommittee Report, of June 9, 2025, at the following link:

https://abgt.assembly.ca.gov/system/files/2025-06/subcommittee-report-of-the-2025-26-budget.pdf

Posts By: Gene Osofsky

Q.  My husband and I have put off doing our estate planning, and now he has dementia and his doctor is concerned about him signing legal documents. He is 5 years older than me and also has some other health issues. We have a home and some financial accounts, and all our assets are held by us as joint tenants. Can we still do planning?

A. Perhaps, yes, but there may be some trade-offs and the options for persons in your situation are very fact specific.

First, know that you can still create and sign necessary documents for yourself  that only require your signature, namely: a Last Will, Advance Health Care Directive, and Durable Power of Attorney (“DPOA”). You and your own doctor may also discuss and co-sign a POLST (“Physician’s Order for Life Sustaining Treatment”). You can also update beneficiary designations on your own IRA, 401K, Life Insurance and/or Annuity policies (if any).

Second, if you believe that – because of his age and other health issues– it is more likely that he will pass on first and that you will be the survivor, you might rely upon the survivorship aspect of the Joint Tenancy titling to create what I call a “survivorship plan”, to be fully funded only after his demise. Here is the way it might work. You could create a “Living Trust” now, upon your signature alone, which would be only minimally funded upon its creation, e.g. by a nominal $10. It would have many of the features of a standard trust, including the designation of successor trustees, and remainder beneficiaries (presumably, your children).  Upon your husband’s demise, you would then take some simple steps to affirm your survivorship with regard to your joint tenancy assets held outside the trust, and then formally transfer them into your Trust.

For the home, you would then file a Joint Tenancy Termination Affidavit with the county recorder, and the home would then instantly be deemed yours and would then be in your name, alone. You would then take the next step, and create and sign a Deed conveying what is now your home, alone, into your “stand-by” Living Trust. You might also do the same with respect to your financial accounts. So, after this effort is completed, all of your significant assets would then be in your Living Trust.

Another option would be to defer creating your Living Trust until after your husband’s demise. However, at that time you may not, yourself, be in a frame of mind to sign legal documents. True, you could, in your DPOA previously signed, authorize someone you trust, such as one of your children, to create a trust for you and then fund it with your home and other assets, but the better plan would be to do it yourself now, while you are fully able and vibrant.

Court Proceeding: If you did not wish to “bet” that you will be the survivor, but still wish to plan your affairs, there is another, more secure, option: You could Petition the Superior Court to approve an estate plan prepared for both of you. This Petition would be brought under the Substituted Judgment provisions of the California Probate Code, namely Code § 3101. As the name of the proceeding implies, the court would then review your petition,  “substitute” its own judgment for that of your husband and hopefully, absent valid objection from any family member, approve your joint estate plan by court order.  This, of course, is a more involved undertaking and would ultimately be subject to the court’s approval.  We have used it successfully for some of our clients, who have been very pleased with the results.

The point is to start thinking about this now, and discuss it with your attorney sooner than later.  Good wishes to you and your husband.

Posts By: Gene Osofsky

Q.  I hear that there is a new California law which exempts some homes from the burden of probate. Do you know anything about this?

A.  Yes, and you heard correctly. Effective April 1 of this year, the new law, known as AB 2016, permits the passing of a decedent’s home valued up to $750K without a full probate, thereby permitting the successors to avoid the time, burden and expense of a full probate administration.

There are some requirements:  The new law is only effective for decedent’s dying after April 1, 2025, it requires that the home be the decedent’s “primary residence”, and the filing of simple petition in the probate court with notice to all heirs and other persons named in the decedent’s Will or Trust.  While a probate court order is still required, the procedure is much simplified over a full probate and would typically be handled in one court hearing, rather than in multiple hearings over the course of a year or more for a full probate.  Further, the value of the primary residence will be indexed to inflation and adjusted every three years, with the first adjustment to be April 1, 2028.

So, for homeowner’s who die without having formally placed their home into a Living Trust, and whose affairs would otherwise require resort to the probate process,  this new “primary residence exemption” can now avoid lengthy probate proceedings for family homes which qualify. Unfortunately, it does not apply to other real properties, such as rental property or vacation homes.  Still, it is definitely a welcome new rule for most families.

More good news:  If the decedent owned personal property which did not have beneficiary designations, such as bank accounts in his or her name only, collectibles, furniture, and the contents of his home, that personal property could now be passed on via a simple Affidavit, provided that the total value of this personal property does not exceed $208,850. Further, when valuing financial accounts and other personal property, assets that bypass probate (such as assets held in a Living Trust or financial accounts with Pay On Death Beneficiary designations) are excluded from the total value, making it easier in many cases to stay within that $208,850 threshold.  This cap – as well – will be adjusted every three years based upon inflation.

So, in short, many more families should now be able to avoid the expensive and time-consuming probate process in order to pass on their loved one’s principal residence and other assets to their surviving next of kin.

Posts By: Gene Osofsky

Q.  My partner and I have been in a Non-Marital relationship for approximately 12 years. Unfortunately, she is showing signs of early dementia, and her children from her former marriage are trying to take over her financial and personal life in a manner which is not in her best interest. We do not have anything formal recognizing our relationship, nor even any basic estate planning documents. Do you have any thoughts as to how we can legally empower each other to manage the other’s affairs when the time comes?

A. Unfortunately, your situation is all too common. Whether her children’s behavior is motivated by concern for their parent, or by their perceived need to protect their own inheritance, the situation can definitely complicate your lives and lead to unintended consequences. If you have not married, nor filed formal documents to become Registered Domestic Partners (“RDP’s”), nor created an estate plan recognizing your relationship, then in the eyes of the law neither of you would have the legal right to manage the personal or financial affairs of the other.

Some of the situations that could arise in this circumstance might include the following:

1) When she becomes incapable of making decisions for herself, her children, rather than you, would have legal standing to petition the court to become her conservator, with the associated legal right to control her care, manage her finances, determine where she lives, and even bar you from visiting if they were so inclined.  Further, if you now live in her home, they might even force you to vacate;

2) Unless you were designated as a signer on any of her bank or brokerage accounts, you would have no legal authority to draw upon her funds to pay her bills;

3) Upon her demise, you would have no legal right to become her estate administrator in the event a probate proceeding were necessary, nor any standing to be treated as an heir or beneficiary of her estate.

In short, if your relationship is not formalized and if you have not created an estate plan for yourselves naming each other as beneficiaries, the law would treat you as merely her friend, rather than as a spouse or family member. As a result, you would have little if any legal rights.

One remedy for this situation is to create an estate plan which recognizes your relationship and, to the extent each of you so desires, designates the other as the agent, executor, successor trustee, and/or beneficiary of each other’s estates.

However, merely because your plan may recognize each other in some fashion does not mean that her children, nor yours if you have any, would need to be entirely left out.  Example:  If she owns the home you live in, she could give you the legal right, if you are the survivor, to remain in the home rent-free for the rest of your life with the home going to her children only after your demise.

Since you indicate your partner is showing signs of early dementia, it will be important to first establish her mental capacity to sign legal documents. In this regard, a letter from her physician so affirming will be helpful. It may also help if you keep the planning documents as simple and uncomplicated as possible, and your attorney may be of great assistance in this regard; a conscious effort to reduce or eliminate complexity would be the goal. The key is to start planning now and place a high priority on completing your plan soon.

Posts By: Gene Osofsky

Q.  I recall reading your article some time back about seeking benefits for care in the home, but I did not save it. Could you address the issue again?  Our 92 year-old mother is frail but wishes to remain at home.  She has limited financial resources, so my sister is living with her and providing care without pay.  Are there any government programs that might help us hire a caregiver and give my sister some relief?

A.  Yes.  This is an update to the article you referenced.  There are a number of programs, but one that may be of special interest is the In-Home Supportive Services Program (“IHSS”).  It is designed for persons with limited income who are blind, disabled or over age 65, and who are unable to live safely at home without assistance.  For qualifying individuals, it provides nonmedical services such as meal preparation, cleaning, laundry, bathing, feeding, dressing, grooming, toileting, and monitoring for persons with cognitive impairments who are at risk of injury at home.

 It works like this: following an application, an in-home assessment is made by a social worker to determine the number of hours of care needed. This can be up to 195 hours per month for a non-severely impaired applicant and up to 283 hours per month for one who is severely impaired or who is at risk of wandering.  Upon approval, the beneficiary then selects and hires a caregiver and the IHSS program pays the worker for the approved hours per month, currently at the rate of $20.00 per hour in Alameda County and at the rate of $19.33/hour in Contra Costa County (in 2025).

Resource Limits:  Good news:  For those persons on Medi-Cal, the asset caps were eliminated in California as of January 1, 2024, and so the focus is now on monthly income. Income is counted after deduction for health insurance premiums, such as Medicare and other health care policies.

Income Limits:  For persons with low monthly incomes and who are on Medi-Cal (but not receiving SSI), the IHSS benefit is now available regardless of how much they have in assets.  However, for persons whose monthly income is above certain levels (currently, above $1,801 for a single person and $2,433 for a married couple, in 2025), the applicant will have a monthly share of cost (i.e. “co-pay”) that must be paid to the worker before the IHSS program pays the balance.  Thus, the program only works well for persons with low incomes, or persons with great need who are awarded care assistance hours close to the maximum. However, note that where a couple is married, but only one spouse needs IHSS, the income of the “well spouse” is not counted for In Home Supportive Services; that said, we find that Medi-Cal often includes the well spouse’s income in the determination of eligibility, which is usually error and should be appealed.

SSI Recipients:  Note that the resource (asset) caps for persons on SSI are still in effect and were not changed by California’s elimination of resource limits entirely, effective Jan. 1, 2024. So, be mindful if your loved one is also receiving SSI, the resource caps for non-exempt assets are still in place, i.e. $2,000 for a single individual, and $3,000 for married couple.

In many cases, the caregiver may hire a family member, whether a spouse or an adult child.  Also, for the caregiver who works at least 80 hours per month, the program makes healthcare available at a nominal monthly premium, a valuable benefit to the worker.

If your mother qualifies for IHSS, she could hire your sister so she could receive both a modest salary and health insurance.  Also, to give your sister some relief each month, your mother could split care hours, hiring your sister part-time and another caregiver for the balance of approved hours.  For caregivers who live in your mother’s home, the payments are not taxable income to the caregiver.

To find out more, call the Alameda County Area Agency on Aging at 510-577-1800, or go to www.AlamedaSocialServices.org, or you may contact our firm for assistance.

Posts By: Gene Osofsky

Q.  I am a frequent user of Facebook and other social media accounts, and I sometimes wonder what would happen to my accounts upon my death. Would my family be able to access my posts or terminate my accounts?
A. Under a California law that went into effect January 1, 2017, the answer is “yes”, provided that you take proactive steps during your lifetime to authorize access after your death. The law is called the “Revised Uniform Fiduciary Access to Digital Assets Act” (“Act”) or AB 691. Previously, California law was silent on the right of family members to access such records after the owner’s death.
Under this Act, there are essentially four ways in which you may give a person you trust (your “fiduciary”) access to your social media accounts after your demise. The “Act” calls these “digital assets”.
1)  Use On Line Tool:  You may give consent in the “Online Tool” set up by the custodian, such as Facebook or Twitter (“X”), in response to the new law. The consent you provide in this tool overrides anything to the contrary in the custodian’s “terms of service”, or any contrary intention in your will or other legal document;
2)  Grant Authority In A Legal Document:  Under the new law, you may grant access in your Last Will, Power of Attorney, Trust, or other legal document.  However, this authorization must specifically grant the right to access your digital assets; a general grant of authority to deal with your estate may not be sufficient.
3) Terms of Service Agreement: If you have failed to grant access by using the account custodian’s “Online Tool”, nor given specific authority in your Last Will or other legal document, then the custodian’s Terms of Service (“TOS”) would control, and the TOS may or may not grant authority to access records of your digital communications after your death.
4) Court Order: Finally, unless you have specifically objected to the release in the Online Tool or in your Will or other legal document, your executor might apply for a court order, provided that he or she can show that disclosure is reasonably necessary for estate administration.
So, if you would like others to have access to your digital assets after your death, the two best ways to do this are as follows: (a) go to the custodian’s website,  locate the “online tool” established pursuant to this legislation and specifically consent to disclosure to your executor, successor trustee, or other designated loved ones after your death; and/or (b) specifically authorize disclosure in your Last Will, Power Of Attorney, Trust or other legal document.
If you have already prepared your estate planning documents, you might consider the creation of a stand-alone Power Of Attorney for Digital Assets.  Note: normally, a power of attorney expires upon the death of the maker. However, under this legislation, a consent in a power of attorney to access digital assets would apparently still be valid, for that limited purpose, after the death of the maker.
Further, this Act was recently amended, effective this year (2025), to address a previous shortcoming: previously, your fiduciary could only access these accounts upon your death. Now, under recently enacted AB 1458, your designated fiduciary can also do so upon your incapacity. This now allows your Agent under a Durable Power of Attorney, or your court-appointed Conservator, to act during your lifetime where you are not able to do so yourself.
Lastly, the term “digital assets” is a bit confusing regarding bank accounts. It appears that the online access to these accounts (which permits you to pay bills electronically and view your banking transactions) is considered a covered “digital asset”, but the actual money in those accounts is not. Thus, you may still need to go into your loved one’s bank in order to handle certain transactions with respect to those accounts.  Still, where the need is to pay bills and determine account balances, the Digital Asset law is a welcome addition to the power now given to your Executor, Trustee, and – most recently – your Conservator and Agent under a POA.
In summary, if you desire to provide access to your social medial and other on line accounts upon your incapacity or your demise, you may now do so, provided that you take proactive steps as outlined above.

Posts By: Gene Osofsky

Q.  I have heard friends complain that their parent’s financial Power of Attorney document was not honored by their parent’s own bank. Is there a way to avoid this?
A. Unfortunately, we hear that complaint from time to time. While there may be no way to draft a power of attorney that completely eliminate the risk that it will not be honored at the time of need, here is my short list of steps you can take to  minimize that risk:
Sign the Bank’s Own Forms: Most banks and other financial institutions have their own, short form Power of Attorney with which they are familiar. While the bank’s own forms are more limited and are usually targeted to specific accounts, signing them – in addition to your attorney-drafted document — usually eliminates the risk that your designated agent will have problems at that bank down the road. Be sure that your own, expanded POA expressly permits you to do this, so that both will be honored.
Include Hold Harmless Provisions in Your DPOA: Financial custodians are concerned about their exposure if they mistakenly rely upon a Durable Power Of Attorney (“DPOA”) that appears valid on his face. It sometimes helps if your DPOA includes specific language that a bank or other custodian will be held harmless if it relies, in good faith, upon a DPOA presented to it.
Fully Describe Real Property: Title companies are sometimes reluctant to honor a DPOA that refers, generally, to “all real property”.  Their comfort increases dramatically if the DPOA recites, specifically, the full legal description of each piece of real property covered by the DPOA. This can be handled either in the body of the DPOA or as an attached Exhibit.
Preserve Evidence of Capacity: If you anticipate any question down the road as to whether an elderly signer knew what he was signing at the time the DPOA was executed, consider asking him to secure a letter from his doctor that the elder has full capacity to sign such documents.  That letter can then be kept on file to be shown to any financial institution should such concern later arise. If the DPOA was signed some time ago, consider asking the doctor for a letter as to current capacity and that the DPOA was discussed with the patient.
Keep the DPOA Current: Third parties are often concerned if a DPOA has been signed so long ago so that it is “stale” in their eyes. I recommend re-executing a financial DPOA at least every 3 to 5 years and, if possible, annually.
Offer a § 4305 Affidavit: Custodians are sometimes concerned that the DPOA may have previously been revoked.  To allay that concern, the agent can submit an affidavit to the custodian, made pursuant to section 4305 of the Probate Code, that the DPOA has not been revoked.  Once completed, that affidavit becomes conclusive proof of non-revocation.
Anticipate Language That the Custodian May Prefer: If the DPOA is being created to be used at a specific bank or title company, ask whether it prefers specific language in the DPOA and, if so, consider incorporating that into your own document.
Legal Proceedings to Enforce Acceptance: As a last resort, consider a lawsuit.  The law provides that a third party who refuses to honor a DPOA, after being provided a 4305 affidavit, may be liable for the petitioner’s attorney’s fees incurred in the court proceeding.  Bringing this to the custodian’s attention often generates the desired compliance.

Posts By: Gene Osofsky

Q.  My 90 year old father has a substantial brokerage account and likes to manage it himself.  Yet I worry that he could easily fall victim to financial scams.  Is there anything I can do to protect him?

A.  Yes, there may be.  The Financial Industry Regulatory Authority (“FINRA”), which regulates firms and professionals selling securities in the United States, has activated two new rules to protect senior investors:  One rule now requires member brokers to make reasonable efforts to ask investor clients, age 65 years and older, to designate a Trusted Contact Person” (“TCP”) whom the broker may contact if the broker reasonably believes that financial exploitation has occurred or may be attempted, or where the investor shows signs of dementia or diminished capacity.  Where exploitation is suspected, a companion rule authorizes the broker to place a temporary hold on the disbursements of funds from the customer’s account, pending further investigation.

These two rules are the result of a growing realization that financial exploitation of seniors is a very real problem, not only for the senior investors, but also for the brokerage firms when financial abuse is suspected. Previously, there were issues of privacy which prevented the broker from contacting family members when suspicious activity was detected, and prior FINRA rules prevented brokerage firms from halting suspected transactions without risking liability.  The scope of the problem became apparent to FINRA after it placed into service its Securities Helpline for Seniors in April 2015: during its first two years of its operation, it fielded more than 8,600 calls seeking help and recovered more than $4.3 million for seniors. For Senior Helpline, call 1-844-574-3577.

For now, the new rules only apply to new accounts or to accounts that are updated, but not yet to existing accounts. That said, it is anticipated that the rule will soon apply, as well, to existing accounts even without an update.

These rules protect not only seniors, but also younger persons aged 18 and older whom the broker reasonably believes have a mental or physical impairment which renders such individuals unable to protect their own interest.

I sense from your question that your father might take offense if you asked permission to monitor his accounts. The nice thing about the new FINRA rules is that the request will come from the broker, rather than from you, and to that extent may be more palatable to your father and other senior investors.

Where the brokerage firm suspects financial exploitation, and initiates a hold on disbursements, it must immediately begin an investigation to determine whether the hold may be extended. The initial hold is limited to 15 days, but may be extended an additional 10 days if there is sufficient cause. A hold can be further extended by court order where the facts so warrant.

Another option is to consider elder protection monitoring through services such as EverSafe. This account monitoring service sends alerts when suspicious activity is detected showing unusual withdrawals, deposits, changes in spending patterns, changes in passwords and identity theft. EverSafe also enables subscribers to designate trusted advocates to receive these alerts, and can assist with creating a recovery plan in the event of loss. Monitoring is on a paid subscription basis, and customers of some brokerage firms can qualify for a discount, e.g. Fidelity customers.  For more go to www.EverSafe.com or call 1-888-575-3837.

Posts By: Gene Osofsky

Q. My wife suffered a stroke and is essentially paralyzed. However, her mind is sharp. I need her to sign a Power Of Attorney so that I can take care of our financial affairs. Is there any way to do this?

A.  Yes. Where a person has sufficient mental capacity to understand the nature of the document he or she proposes to sign, and where the only limitation is a physical inability to perform the act of signing, the law provides alternative methods to obtain a legally valid signature:

Signature by Mark: If your wife is unable to sign his or her full name, she might make a mark, such as an “X”, on the desired document. The signing must be witnessed by two disinterested witnesses, each of whom must also sign the document reciting that they watched your wife place  her mark on the document, and one of the witnesses must actually sign her name adjacent to her mark. If she does not have use of her arms, a pen might be placed between her teeth to enable her to mark the legal document. However, care must be taken so that the actual mark or “dot” on the paper is the act of your wife.

Signature by Amanuensis: Where a person is totally paralyzed and would not even be able to clench a pen in his or her teeth, but is able to speak and give instruction, there is another procedure called signing by “amanuensis”.  In legal parlance, an “amanuensis” is an assistant who copies or writes from the dictation of another.  Thus, if your wife is totally immobile, but if her mind is clear and she can speak or otherwise give direction, she could direct someone to sign her own name on a legal document. The actual signer should be a disinterested person, other than yourself, and the signing should occur in your wife’s presence.  It would be best if a notary were also present to notarize the document. Note:  most notaries will be unfamiliar with this procedure, and so you should engage a knowledgeable attorney who can explain the process to the notary and supervise the signing.

Laser Pointer To Give Direction:  In some situations, the paralyzed individual may have also lost the power of speech. Yet, if he or she retains some method of communication, such as by eye movements in response to questions or via a laser pointer she can control with some part of her own body to point to letters or words on a communication board, the process of signing by amanuensis could be modified to accommodate that limitation. It would also be helpful if a doctor wrote a letter affirming her ability to understand and communicate by the eye movements or laser pointer. I would again recommend that an attorney be present to supervise the process, and the signing process be recorded on video. For laser pointers and other solutions to communication, check out this website:  store.lowtechsolutions.org. You might also wish to engage the services of an assistive technology specialist for other ides to facilitate communication, and for that see the following website: resna.org

Blind Signer: If the principal is blind, but otherwise has the use of her limbs, I would recommend that the entire document be read to her, word for word, and her understanding confirmed. A ruler or “cut out” template might be used to guide the placement of her hand so that she signs at the appropriate place on the document. Again, I recommend that the entire process be videoed. A witness might also certify the principal’s understanding and a notary should be present to notarize the document.

In your case, with patience and some thought, your wife’s signature on the Power of Attorney can be legally secured. Reminder:  the above comments assume that the person with physical challenges does have adequate mental capacity to understand what he or she would be signing.

Posts By: Gene Osofsky

Q.  My husband and I are concerned about how to keep our trust up to date in light of changing tax law and changing family circumstances.  What if we are too ill to make changes ourselves when needed. Any thoughts on how we can handle these concerns?                                                

A. Yes. With the ever-changing tax landscape, and changes over time in family circumstances, keeping your trust up-to-date can be challenging. Here are some techniques to incorporate into your estate plan to help deal with change, even where you are unable to do so yourself:

1) Use a Power Of Attorney: delegate authority to a trusted agent to amend your trust as tax laws and family circumstances warrant. Your agent would typically act only if you were unable to do so yourself.   To be valid, this power must be expressly stated in a Durable Power Of Attorney (“DPOA”) and reciprocal provisions must also be in your trust. Unfortunately, this dual requirement is too often overlooked, resulting in an ineffective delegation of authority.

2) Use a Trust Protector: an emerging mechanism involves naming a Trust Protector (“TP”) in your trust in order to update your trust as need requires. The TP would be independent of your trustee, who would handle normal trust administration.  By contrast, the TP would act like a “super trustee”: he or she would have the power to replace the trustee, modify administrative provisions and even change the ultimate disposition of trust assets in order to meet your stated objectives. Unlike the trustee, who would have a fiduciary duty to act according to the existing provisions of the trust, the TP could modify or override those provisions to comply with changing law and your expressed intent. The TP must be someone who is not a beneficiary under your estate plan, but in whom you have a high degree of trust.  Unlike the agent acting under a DPOA, the TP could even make some changes to your trust after your death if necessary to meet your stated goals, e.g. tax avoidance.

3) Include Disclaimer Provisions: a disclaimer is the right to decline a bequest, so that it goes to the next person in line, typically one’s children. Disclaimers can be very effective in postmortem tax planning, especially as a technique to remove future appreciation from one’s taxable estate.   Example: assume that a married couple has a combined community property estate valued at just under the current Federal Estate Tax Exemption amount ($13.61 Million/each for persons dying in 2024), but which is likely to revert to a much lower number after year 2025, when the current exemption ‘sunsets’).  

Upon husband’s death, assume their estate plan directs that all goes to wife as the surviving spouse.  If she reasonably anticipates future appreciation, it is likely that–upon her later demise–the value of her estate will then be above the amount that can escape estate tax.  If, however, upon her husband’s death she makes a timely disclaimer of a portion of her “inheritance”, so that a portion “skips” her and goes immediately to their children, the appreciation attributable to the disclaimed assets will then be owned by their children and will escape estate tax at the wife’s later death. 

In larger estates, this technique can potentially save a significant amount of tax upon the surviving spouse’s later demise. For more modest estates, since the disclaimed assets “skip over” the surviving spouse and pass directly to the children or other designated successor beneficiaries, it can save the time and expense of a second trust administration upon the surviving spouse’s death. Its use can also accelerate the children’s inheritance.

4) Permit Decanting: Decanting is a term borrowed from wine vintners, and in the trust world it refers to modifying an existing trust to get rid of unwanted provisions (i.e., “sediment”, for vintners), by “pouring” the good provisions into a new trust that is free of the unwanted provisions.  In 2019, California became one of a growing number of states to adopt the Uniform Trust Decanting Act, which now allows a trustee to make changes to a trust without initiating a judicial proceeding, upon notice to, and usually with the consent of, the trust beneficiaries. Decanting can be implemented so long as the trust does not expressly prohibit this technique. Changes via decanting can even be made, in many cases, after the death of the original creator(s) of the trust. Here are some examples of its application: to create a Special Needs Trust to hold the share of a beneficiary then on public benefits; to comply with changes in the tax code; to address changes in family circumstances, etc. For more, see articles on our website on this topic.

5) Include a Power of Appointment: A Power of Appointment (“POA”) is a power held by a designated individual, usually the surviving spouse in a couple’s joint trust, to take another look at the plan design and modify it as the power holder feels is then appropriate, typically some time after the death of the first spouse. The survivor can then re-arrange the distribution of trust assets, and add or delete beneficiaries, as he/she feels circumstances then require. It can be very useful when family circumstances have changed since the trust was originally created, for example by deaths, births, divorces or other changes in relationships (whether they be positive or negative).

6) By Court Order: Lastly, one can petition the court for a modification of trust, based upon “changed circumstances”. This is a more involved option, but is available when needed.

It has been said that the only certainties in life are death and taxes.  I would add a third:  change. Make sure that your estate plan includes at least some mechanisms to deal with this “third rail” of estate planning.