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.