Online resource center to help you explore these key issues, and others, regarding your estate.

Practice Areas

Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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VA Pension/Aid & Attendance/Medi-Cal

Mr. Miller has been active in the area of VA Pension and Medi-Cal for well over a decade. He uses various specialized types of Trusts as well as non-trust strategies to gain eligibility for his clients and save the family money.

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Probate & Estate Administration

Mr. Miller has been settling estates (both simple and complex) for well over 40 years. The starting point is always to create a strategy to settle the estate in the most efficient manner possible with a minimum of taxes. Often times the strategy created allows the family to bypass Probate Court proceedings.

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I’ll Do What I Want!

By merv,

  Filed under: Blog, Estate Planning

Often when a parent or loved one loses capacity, someone in the family takes control over the incapacitated person’s financial or medical decisions.  When the incapacitated person has done proper estate planning in advance, the person who takes over is named in the estate planning documents, such as a Financial Power of Attorney, Trust, or Advance Health Care Directive.  When proper estate planning has not been done, the person taking over is often surprised to find that he or she does not have any real, non-emergency authority to act without action by the court in a Conservatorship (guardianship) proceeding.

However, being named as a Power of Attorney, Agent, or Conservator is not the end of the story.  Clients frequently begin their legal questions with, “Well, I’m Power of Attorney so…” and continue with whatever action they propose to take, whether it is to sell some real property, change the incapacitated person’s residence, or authorize a particular type of treatment.  Stop right there!  Understanding the role of the decision-maker in these circumstances is crucial before taking any action.

All of these positions are “fiduciary” relationships, meaning the named person must act in the best interest of the incapacitated person at all times and even above his or her own self-interest.  Although as an agent, the fiduciary is allowed to “step into the shoes” of the incapacitated person to make decisions, those decisions must align with the incapacitated person’s known preferences and beliefs, unless there is some compelling reason to act otherwise.

Financial Powers of Attorney, Conservators of the Estate, and Successor Trustees all serve similar functions: they take control over the financial decisions within their realm.  In the case of Successor Trustees, only trust assets can be controlled.  For Financial Powers of Attorney and Conservators of the Estate, only finances outside the trust may be controlled.  In all cases, the document(s) granting the authority to act may contain a number of limitations about which you should familiarize yourself.  It is possible that the document limits the fiduciary’s power to make certain investments or sell certain property.  In such cases, the fiduciary may need to request court permission to act or find another way to accomplish their goal.

Similarly, Advance Health Care Directives and Conservatorship over the Person grant the authority to make medical decisions.  The Health Care Agent is not totally bound by the document, but is put on notice within the document of the incapacitated person’s preferences.  For example, if the incapacitated person is a member of a religious group that believes in certain treatments, such as faith healing, or objects to treatments, such as blood transfusions, then the agent will have to justify any contrary health care decisions to the incapacitated person, if he or she regains capacity, or to the family members.  The Agent’s personal beliefs are not grounds for approving or denying certain treatments.

If you have been named as an agent for another person, your rights, responsibilities, and obligations are complicated areas of the law.  Familiarizing yourself with the documents is the first step toward ensuring that you are acting appropriately and protecting yourself from future liability.  You should consult with an attorney immediately to clarify any parts that you do not understand and before taking any major actions.

Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things… FREE REPORT: This complimentary report, focused on Estate Planning, is comprised of many of Mr. Miller’s articles from his long running column for the largest regional newspaper in San Diego County. This report will guide you through the questions surrounding getting your estate planning in order.

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning

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