Temmerman, Cilley, Kohlmann & Norcia, LLPSan Jose Estate Planning & Probate Lawyers | Danville CA2026-10-06T19:46:21Zhttps://www.tcklawfirm.com/feed/atom/WordPress/wp-content/uploads/sites/1200534/2025/01/cropped-Favicon-32x32.jpgOn Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP.<![CDATA[Can your health care agent go against your advance directive?]]>https://www.tcklawfirm.com/?p=491962026-10-06T19:44:54Z2026-09-28T13:46:24ZWhat authority does your healthcare agent have?
An advance healthcare directive can include your treatment instructions and name an agent to make health care decisions when you cannot make them yourself. The difference between your instructions and your agent's authority matters when questions arise about a decision.
Your agent generally must make decisions consistent with your known instructions and wishes under California Probate Code § 4684. When your instructions do not address a particular situation, the agent may make the decision to the extent allowed by the directive and relevant law.
When can an agent's decision become a dispute?
A dispute can arise when your directive contains specific treatment instructions but your agent believes a different decision would be appropriate. The wording of your directive matters, especially when it addresses specific treatments or gives your agent broader decision-making authority.
Questions may also arise about whether a particular action falls within the agent's authority. The scope of the agent's authority depends on the directive and relevant California law.
What matters when an agent's authority is challenged?
The advance directive is an important starting point. Its instructions, the authority granted to the agent and other evidence of your known wishes may help determine whether the agent acted within that authority.
Clear records can also help establish what you intended and what authority you gave your agent:
Other documents that clarify the agent's authority
These records may become important if an interested person challenges whether the agent acted in line with the person's wishes or within the authority granted by the directive.
Protecting your healthcare wishes
Review your advance directive to confirm it clearly reflects your instructions and the authority you intend to give your agent. A California estate litigation attorney can review your advance directive and advise you if your agent's decisions conflict with your wishes or exceed the authority you granted.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP.<![CDATA[What if a hospital will not follow my advance directive?]]>https://www.tcklawfirm.com/?p=491842026-09-21T05:54:21Z2026-09-21T05:54:21ZWhy refusals can happen
Confusion often drives the first conflict. Staff may not have the document, may doubt whether it fits the current condition or may see unclear language about specific treatments. Delays can also happen when family members disagree and the care team tries to minimize liability. Naming an agent and alternates can reduce friction.
Steps to take in the moment
Start by placing the directive in the chart and confirming that your named health care agent is identified as the decision-maker. Practical steps that may help include:
Ask the charge nurse to place the directive in your chart
Request an ethics consult or patient relations review
Have your health care agent speak directly with the attending physician
Provide any POLST (Physician Orders for Life-Sustaining Treatment) form if one exists and is current
For ethical or religious refusals, the hospital must make reasonable efforts to transfer you to a willing provider. You may file a complaint with the California Department of Public Health (CDPH).
When family is asked to decide
If staff turns to relatives for consent, a named agent generally has priority under California law, and family disagreement typically does not override a valid directive, as explained in how California prioritizes next of kin in health care decisions. Have your agent serve as the primary contact and keep a dated log of names, roles, conversations and documents submitted.
When to seek legal help or file a complaint
If internal steps, a transfer request and a CDPH complaint have not resolved the situation, a court may be able to issue an emergency order – an option worth raising with an attorney quickly when time is short. Once the immediate crisis is behind you, reviewing your directive can help prevent the same disputes from arising in the future.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[Is now the time to update your estate plan?]]>https://www.tcklawfirm.com/?p=485332026-10-06T19:45:39Z2023-05-05T20:25:51ZReviewing your plan regularly
Forbes discusses the reasons it is time to update an estate plan. In some cases, enough time may have elapsed since the last review that it is simply time to take another look.
Over the years, many things change. A person may not even have full awareness of every change, or remember it all. This is why reviewing can help, as it refreshes a person's memory and allows them to make those changes.
Though opinions vary, many experts suggest a person review their estate plan once every two to four years.
Making changes to reflect life changes
Of course, when life changes happen, it is important to take a look at an estate plan and make the appropriate changes then and there. There is no need to wait until years pass to do a regular review when knowing a change is happening.
What changes should a person immediately make edits in their estate plan for? Any change that involves beneficiaries, finances and assets, or the location of the individual to whom the estate plan belongs.
Matters of beneficiaries can include marriages, divorces, births, adoptions, deaths, estrangements and more. Asset changes typically just focus on sudden asset gains or losses, or the transfer of one asset type to another. Finally, each state has its own estate planning laws, so if someone moves, they must ensure their estate plan still works.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[What are revocable and irrevocable trusts?]]>https://www.tcklawfirm.com/?p=484622022-10-10T15:55:16Z2022-10-10T15:55:14Zrevocable trusts are good for avoiding probate, while irrevocable trusts can help avoid estate tax.
Avoiding probate with revocable trusts
A major concern for estate planners is probate. Depending on the situation, it is possible for assets to stay in probate for months, if not years. Careful planning is necessary to avoid this, and a revocable trust is a great way to avoid probate. Anything in a revocable trust goes straight to your beneficiaries.
Another benefit of revocable trusts is that you can make as many changes to the trust as you like before you die. The assets in a revocable trust remain your property.
Avoiding estate tax with irrevocable trusts
The government cannot apply estate tax to anything in an irrevocable trust. Another benefit is that creditors also may not go after anything in one.
However, you may not make any changes to an irrevocable trust after you create one. This is because anything in an irrevocable trust is no longer your property. It is also possible for the government to criminally charge you, if they find you created an irrevocable trust for fraudulent purposes.
While estate planning, you have many choices to make. Revocable and irrevocable trusts are great ways to ensure that you manage your assets exactly how you like.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[What can you do in the case of a no-contest will?]]>https://www.tcklawfirm.com/?p=484572022-09-23T19:17:28Z2022-09-26T19:16:36Zno-contest will is not enforceable.
What is a no-contest clause?
No-contest clauses forbid you from challenging the terms of the will. After a person dies, many families begin to fall apart because of arguments that occur during grief. People may have expectations about their inheritance and when the inheritance does not live up to it, they may want to fight the will. In this case, the no-contest will protects the document and disinherits anyone who tries to fight the terms of the will.
When can you fight a no-contest clause?
You can fight a no-contest clause if you have a valid reason to think that your loved one could not make sound decisions or that someone manipulated him or her into changing the will. You cannot initiate a creditor's claim or plead to argue for the transfer of property that the settlor cannot transfer.
While giving your loved one the benefit of the doubt and honoring a will can be important, if you worry that your loved one did not have a sound mind when creating certain aspects of the document, you may want to fight the no-contest clause.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[What should I know about when a power of attorney goes into effect?]]>https://www.tcklawfirm.com/?p=484422022-08-23T03:35:23Z2022-08-23T03:35:23Zpower of attorney. In addition, you need to understand when it goes into effect and how it remains effective.
Going into effect
Your power of attorney will become effective whenever you decide. You will set the perimeters for its use. You will write this into the documents that create the power of attorney. You have the ability to make it effective as soon as you sign it, but most people will make it effective when a triggering event happens, such as a medical professional declaring you unable to make your own decisions.
Ending the power
To end a power of attorney, you need to set this up when creating it. You will either put a specific date or a triggering action. A triggering action can be when the agent does something specific. You can also make it a durable power of attorney, which means it lasts until your death or until you take the legal steps to cancel it.
It is important that you know the details of your agreement and that you understand how this works. You want to be sure that you take the right steps to begin and end the power of attorney at a time that is best for you.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[How do you preserve your family’s money?]]>https://www.tcklawfirm.com/?p=484042026-10-06T19:45:48Z2022-07-27T01:27:44ZGift when alive
One option that some people overlook is the gifting option. Gifting can allow you to pass your assets to loved ones while living without having to worry about various taxes. An additional benefit to gifting your loved ones is the ability to see the look on their face when you do. You do not have to wait until you die to pass on some of your assets that you want your loved ones to have. The IRS allows you to give $15,000 in gifts per person per year. If you give away assets that appreciate in value, like homes or stocks, because the taxable amount adjusts after you die.
Set up a trust
If you worry about how your heirs will treat your money, you may want to set up a trust. Irrevocable trusts offer tax benefits, such as avoiding the estate tax. A trustee controls the money and assets within the trust and a person can only use those assets under certain circumstances.
When it comes to your assets, you deserve to leave behind the money you want to your family.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[Proving undue influence when challenging a will]]>https://www.tcklawfirm.com/?p=483842026-10-06T19:45:43Z2022-07-18T21:18:26ZKey arguments in an undue influence case
To prove undue influence in court, you need to show that the party that influenced the other had a certain degree of power or authority over the other. Then, you need to show that the influential party preyed on the other party’s mental limitations, or took an “oppressive and unfair advantage” of the other party’s condition or situation.
Key considerations in an undue influence case
When deciding if undue influence occurred, expect the court to consider how vulnerable the victim was to influence. The court may take into account mental capacity and dependency, among other areas. The influencer’s tactics and actions in influencing the victim also fall under the microscope, as does the overall outcome of the influencer’s actions.
Your ability to succeed in an undue influence case depends on your ability to demonstrate that an unequal relationship and unreasonable coercion resulted in your loved one making estate planning moves he or she otherwise would not.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[Some details about contesting a will]]>https://www.tcklawfirm.com/?p=483712026-10-06T19:45:45Z2022-07-13T12:51:09ZA relatively common occurrence
According to a Forbes article, will disputes occur between children of the deceased and a second wife as well as between traditional family members and friends. These battles often involve high emotions, as some family members insist they deserve a greater share of the assets of the deceased.
While many will disputes settle before they reach a court decision, many others involve depositions, counter lawsuits and even court testimony. The person contesting the will often must answer a series of personal questions about his or her relationship with the deceased. The team seeking to uphold the will might try to paint the person bringing the lawsuit as opportunistic or greedy.
A need for a smart strategy
Particular moves such as filing a motion quickly can have an impact on the case. However, as with most litigation, success hinges on the strength or weakness of the case. A settlement offer often comes from one party or another, enabling a way out of the lawsuit without the expense and time of a trial.
Even a weak case could result in an offer that improves the situation for the contesting party. While the result of a will dispute could involve additional remuneration, it can also leave emotional wounds among family members. As with all legal issues, a clear calculation of benefits and disadvantages should enter into the decision.]]>On Behalf of Temmerman, Cilley, Kohlmann & Norcia, LLP<![CDATA[How often should you update your estate plan?]]>https://www.tcklawfirm.com/?p=483912022-07-09T03:28:13Z2022-07-09T03:28:13Zhow often you should review your estate plan and which events warrant modifications.
Estate plan reviews: The rule of thumb
According to Fidelity, you should review your estate plan often. How often though?
While the answer depends on the complexity of your estate plan and unique preferences, the publication suggests conducting a financial review annually, quarterly or semi-annually to identify any major changes that may warrant a modification to your estate plan. When it comes to your estate plan specifically, Fidelity suggests conducting a review every three to five years, or when you experience a major life event.
Major life events that may trigger a change
Regardless of when you last conducted a review of or made a change to your estate plan, certain life events may necessitate an additional review or modification. Common triggering life events are as follows:
The birth or adoption of a new child or family member
A death in the family, or a change in the number of dependents you care for
A marriage or divorce
A disability or illness
When a child or grandchild comes of age
When a child or grandchild needs educational funding
The purchase of a home or other significant asset
A major increase or decrease in the value of your estate or investments
You may also want to modify your estate plan if you or your spouse’s financial goals change, if your long-term care or life insurance coverage changes, or if you receive a large inheritance or gift. Taking on more debt or borrowing money from a loved one may also trigger the need for a modification. Finally, a career change, new business or job promotion may also warrant a review or modification.
Maintaining a current estate plan is crucial to ensuring your loved ones and estate representative uphold your wishes. A professional can inform you of when you need to make changes and, just as importantly, help you make modifications that are in line with your long-term goals and wishes.]]>