Christmas Eve Heart Attack? Is Your Plan Ready?

An observational study of 16 years of hospital records showed a correlation between heart attacks and the Christmas holiday season. Specifically, 10PM on Christmas Eve had the highest risk of heart attacks. The study’s authors explain that a culmination of short term risk factors including “emotional stress, heavy physical activity, cold weather exposure, and air pollution” could lead to the uptick in heart attacks.

“Well, thanks, Brian,” you’re thinking. Brian’s just coming along and putting a damper on the holiday spirit. Not at all. I’m using the opportunity to encourage folks to ensure their plan is in place. One of the key elements of BDR’s Four-Part Plan is a living will.

I am commonly asked about living wills (AKA, advanced health care directives) and why it should be in place. A living will allows you to plan for your medical care before you become incapacitated and are unable to direct your care. I always recommend folks have an advanced health care directive in place.

A living will allows you to designate an agent to act on your behalf with regard to medical decisions while you’re incapacitated. For unmarried folks, I highly encourage a living will be put in place so you have somebody to act on your behalf. A living allows you to designate a primary physician and also dictate the type of care you want in certain circumstances (e.g., prohibiting blood transfusions or establishing do-not-resuscitate and do-not-intubate orders).

I guess the point I’m trying to make here is that you can’t stop life, so you better Make Your Plan and cover yourself when it comes at you.

Case Review: Hutcheson v. Eskaton Fountainwood Lodge – Distinguishing Health Care Power of Attorney and Personal Care Power of Attorney

Hutcheson v. Eskaton Fountainwood Lodge is a great example of how a health care power of attorney serves a specific purpose whereas a personal care power of attorney serves a general purpose. The two powers of attorney can conflict at times and one will take precedence over the other.

In this case, decedent Ms. Lovenstein executed a heath care power of attorney in 2006 which became effective immediately. Ms. Lovenstein appointed her niece Ms. Hutcheson as her attorney-in-fact for health care decisions. Four years later, in 2010, Ms. Lovenstein executed a personal care power of attorney. Ms. Lovenstein appointed both her sister Ms. Charles and Ms. Hutcheson as attorneys-in-fact for personal decisions. However, the personal care power of attorney specifically excluded power for health care decisions.


The effect of the two distinct powers of attorney meant that Ms. Hutcheson had powers for both medical and personal matters, but Ms. Charles only had powers for personal matters. Can you guess what happened next?

Ms. Charles signed an agreement for Ms. Lovenstein to be admitted to Eskaton FountainWood Lodge, a licensed residential care facility for the elderly. At the time of admission, Ms. Lovenstein was suffering from dementia and seizures, and she was confused and disoriented.

So herein lies the problem – did Ms. Charles’s powers give her the authority to sign an agreement admitting Ms. Lovenstein to Eskaton FountainWood Lodge? The issues is whether Ms. Charles’s decision is a personal care or a medical decision.

To understand the interplay between the two powers of attorney, look to the statutes authorizing the powers. The Power of Attorney Law is found in Probate Code § 4000 et seq., and the Health Care Decisions Law is found in Probate Code § 4600 et seq. The Power of Attorney Law applies to decisions regarding personal care but does not extend to health care decisions, those are left to the Health Care Decisions Law.

The Court went to great length to distinguish the type of care provided by the Eskaton FountainWood Lodge and made its decision based on the level of care provided by Eskaton FountainWood Lodge. For example, the Court noted that the type of service to be provided by Eskaton FountainWood Lodge was greater than just boarding care like laundry, lodging, and meal prep; rather, the care was medical in nature because Eskaton FountainWood Lodge would be providing dementia care and a higher level of care by trained staff.

The Court did note that although residential care facilities are not primarily medical, and in some cases may provide only assistant for personal activities of daily life. The Court discusses many theories of statutory interpretation and decides that in some instances admitting a loved on to a residential care facility can be a personal decision and sometimes it can be a medical decision. In the case of Ms. Lovenstein, the admission was a medical decision because of the amount and type of care needed.

This decision comes from the Third District of the California Court of Appeals, case number C074846.

Hutcheson v. Eskaton Fountainwood Lodge is an excellent example of why you need both a health care power of attorney and a personal care power of attorney, and why the two should be drafted and executed with the help of a qualified attorney.


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Brian Russ is an estate planning attorney in West Sacramento, Yolo County, California. Call today to schedule an estate planning consult: (916) 750-5155.

Original post date: February 3, 2018

Case Review: Tepper v. Wilkins – How Standing Impacts Litigation in Elder Abuse Actions

This case involves an intrafamily dispute where one sibling brings a suit claiming the other siblings are committing elder abuse against their mother. Eileeen has four children involved in this action: Geoffey, Derek, Martha, and Belinda. All the children but Belinda are serving as co-trustees as of Eileen’s revocable living trust.


Belinda brought a suit against her siblings claiming elder financial abuse, but Belinda did not claim she was harmed personally by the siblings’ actions, nor that she had standing as Eileen’s attorney-in-fact or conservator to bring the claim.

The Second District Court of Appeal reviewed Belinda’s appeal under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institution Code § 15600 et seq. Special standing rules apply under the Elder Abuse and Dependent Adult Civil Protection Act, including that an action can be brought either by the elder or the elder’s personal representative when the elder is alive and lacks capacity or is of an unsound mind.

The elder’s personal representative, however, is not just anybody with a familial relation to the elder. Rather, the personal representative is one who is either “(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult” or “(2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.” (§ 15610.30, subd. (d)). An intestate heir affected by the action may have standing to bring a claim, but standing only arises after the elder’s death.

The court concluded that Belinda had no standing to bring the claim because Belinda was not Eileen’s conservator, trustee, other representative, or an attorney-in-fact. Rather, simply because Belinda was Eileen’s daughter did not afford her standing under the Elder Abuse and Dependent Adult Civil Protection Act.

Tepper v. Wilkins is case number B269900 and was filed on April 19, 2012 in the Second District Court of Appeals.

I recommend working with an estate planning attorney to ensure your trustees or power of attorney is properly in place and explained to all affected family members to avoid intrafamily disputes. Litigation under the Elder Abuse and Dependent Adult Civil Protection Act is a costly endeavor – both financially and emotionally.


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Brian Russ is an estate planning attorney in West Sacramento, Yolo County, California. Call today to schedule an estate planning consult: (916) 750-5155.

Original post date: February 5, 2018.