Powers of Attorney are a major tool in every estate planner and elder law attorney’s toolkit, and the concept has been fairly well ingrained in our cultural lexicon. Perhaps it’s because of that that it never ceases to amaze me how frequently misunderstood they are. It shouldn’t be surprising that a properly informed client does not translate to properly informed children a decade or two down the road, and yet, when my colleagues and I then try to set the record straight for family members, they do not want to believe us.
I have given some thought to what the easiest, proper explanation of a power of attorney is, and if I was pressed to boil it down to a single sentence, I’d go with the following:
A power of attorney is a document that allows an individual to share with another person their own ability to manage their money and property and make legally binding agreements on their behalf to the extent specified in the document.
However, since my goal is to provide a well-rounded discussion in these blog posts, and there’s no shortage of space, I’d like to break down a few key parts of that definition for those who are interested.
People in unique situations, like family business owners, parents of children with special needs, and people with substantial net worth are often very proactive about enlisting attorneys to craft a comprehensive estate plan. Most others understand the benefit of such planning – stating how your property would be divided up with specificity, appointing decisionmakers for any future incapacity, naming alternate guardians of minor children – but are hesitant to contact an attorney to set their affairs in order. This is entirely understandable. People rarely find themselves excited to consult an attorney in general, and even less so when the purpose is to contemplate your own mortality. The prospect of death or incapacity may seem unlikely for your age, making it easy to put off, and spending money on a backup plan may not seem like the best use of limited resources in a tight economy. Notions of costs in the thousands rather than hundreds or the belief that an expensive “living trust” is needed to avoid probate doesn’t help much either.
But for all of the practical difficulties people know are possible with a lack of planning, few are aware that there can be significant financial consequences of improper planning, even for those modest means. In most cases, even basic estate planning will offset significantly higher hidden costs in the future. After the break, three extremely common examples of these costs.
It’s a common situation. Your dad realizes he’s not getting any younger, so he adds your name to his bank account “just in case.” Or mom offhandedly tells you she “put you on [her] annuity,” though your name’s not on the statements. Maybe Mom’s not as sharp as she once was, and after requesting copies of her statements and faxing over your power of attorney as they asked, you find your name added to the account. Perhaps a decade ago your parents put away some college spending money for your son, and you’re listed as “Custodian under UTMA” on the bank statements.
If you have elderly parents, it’s likely you’ve come across one or more of these scenarios, and they tend to bring with them a bunch of questions, like:
- Does that mean it’s my money? Does half this interest go on my taxes now? Does all of it?
- Can I take out money if I want to?
- Does this mean I have to do anything? Will I get in trouble if I leave things as they are?
- Is this a gift? Can I take out money if I want to?
- What happens when they pass away? Can I just withdraw the money, or does it have to go through probate, or what?
The answers are fairly easy, yet it is a subject on which even veteran accountants and policy reps get their wires crossed. However, if you understand which of the three reasons has placed your name within your parent’s records, it’s easy to understand what is actually going on.
An article last week in the local lawyer’s trade paper, The Connnecticut Law Tribune, discussed the increasing prevalence of wills being delayed in the probate process through complaints, objections, and full-out challenging of wills admitted to probate.
It’s not surprising, given that the economy is at the lowest point most of us have ever and will ever see. There will always be maligned siblings looking for their fair share and suspicious later-in-life will changes, but in these tight times staying silent to keep the peace may not be the option it normally would be for some left-out relatives. At the same time, there’s likely a surge in opportunists who suspect (accurately, as it happens) that most legit beneficiaries would rather pay a small, quick settlement than see their own inheritances delayed and diminished by a protracted lawsuit.
It’s an unfortunate situation for those looking to plan for when they are no longer around. It’s also a good example of why it’s so important to have your will done by an attorney, in particular one who handles a great deal of wills and probate work.
If you’re looking to cut someone off because you question their responsibility or they have significant debts, several different types of trusts can be employed to address those concerns without completely disinheriting the person. If you just want someone out, the wording must be carefully chosen to meet legal standards. Depending on the situation, it may be better to employ a “carrot and stick” tactic, where the ousted person is actually given a small legacy under the will, but which is forfeited if he or she challenges the will in court.
Later-in-life will changes are particularly susceptible to challenge in court, as relatives may claim the author was not competent to make the will, or had been subjected to the manipulation and pressure of an overbearing child or confidante. An experienced estate planning or elder law attorney can take steps to help ensure the will will be upheld in court, such as careful selection of the location and people present at the execution ceremony (will signing), choice of witnesses, and videotaping the ceremony as future evidence.
For more information, feel free to call me at (203) 871-3830 or email email@example.com for a free consultation.
I recently had the opportunity to attend a lecture by a colleague discussing the benefits of certain will clauses as illustrated by notable wills in the public record. At one point we were discussing spendthrift clauses, a common technique to withhold a benefit from someone whose creditors would just end up with it anyways, using an excerpt from the self-written will of President (and attorney) Thomas Jefferson:
“Considering the insolvent state of affairs of my friend & son in law Thomas Mann Randolph, and that what will remain of my property will be the only resource against the want in which his family would otherwise be left, it must be his wish, as it is my duty, to guard that resource against all liability for his debts, engagements or purposes whatsoever, and to preclude the rights, powers and authorities over it which might result to him by operation of law, and which might, independantly (sic) of his will, bring it within the power of his creditors. . .”
The attorney noted how beautifully written the prose of those days went, how lofty and eloquent it was. I noticed something very different, though, and very disturbing. I saw precatory language.
How a $75 piece of paper can save you a boatload of trouble.
I was recently hired by a gentleman who found himself in a difficult circumstance. Not all that long after he and his wife had cashed their first Social Security checks, his wife had begun to show signs of forgetfulness, and in the span of just a few months had descended into moderate dementia. I was consulted to help get her affairs in order while she was still able to participate in the process, and I recommended all of the things I would recommend to any senior: a Durable Power of Attorney, Appointment of Health Care Representative, Living Will, and Last Will, but I made one more suggestion that threw him for a bit of a loop:
I suggested that getting his own health care plans in order was more important.
That’s not to say that this was the more pressing issue, but a healthy spouse’s plan does have broader consequences than a sick one’s, and it’s not hard to see why. In my client’s case, once the wife becomes unable to manage her finances and care, everyone – the hospitals, the family and the courts – will be looking to him for answers, and he’s more than capable of giving them. Should the husband have an automobile accident, or a fall, or a serious illness, however, he’s asking for an express ride down the rabbit hole in the healthcare decision process.
With the House and Senate banging out the final version of the financial reform bill, it seems a fair guess that many people are wondering how the new law will affect their own investments, and that trustees are likewise concerned about what major consequences such sweeping legislation might have on the assets they are obligated to carefully manage. While a significant part of the bill is still up in the air, all possibilities seems to point to one answer:
None. Nada. Zilch.
Wolf and Allan discuss the changing federal estate tax landscape.
In a December 17th segment on CNN’s The Situation Room, Wolf Blitzer and colleague Allan Chernoff began discussing the upcoming changes changes in the federal estate tax landscape. They point out that in just a few short days the calendar will turn and the reign of EGTRRA (the Bush tax cuts) over the estate tax comes to a close. No estate taxes will be owed on deaths occurring in the year 2010, but in 2011 the tax comes back at an even lower threshold, resetting to it’s pre-Bush rate of 41%-50% on assets over $1 Million. While all of this is perfectly accurate and well worth knowing, much of the commentary surrounding it was murky at best, if not just plain wrong. After the jump, some of the points that could use some tweaking:
“EYELIDS? I DON’T SEE WHAT EYELIDS HAVE TO DO WITH IT.”
These exact words were directed at me a few years ago by my Trusts professor in law school. The professor is a very well-known scholar in the wills/trusts/probate field, but as someone who doesn’t practice he failed to recognize that I was saying “ILIT,” common parlance in the field for an Irrevocable Life Insurance Trust.
My professor’s problem illustrates a potential one for Estate Planning clients. Most attorneys realize that they are dealing with complex and often obtuse concepts that can make an uninitiated client dizzy, and do their best to explain things carefully and at a reasonable pace. However, it may still be a challenge to take in, particularly with terms that sound confusing (like ILIT) or are used interchangeably with other terms, so after the jump, a glossary of common terms likely to cause confusion:
An article in Time Magazine this week tells the story of a man who was presumed brain-dead for nearly a quarter century, but as it turned out, had been alert and listening the whole time.
Rom Houben, a Belgian engineering student before his accident, was suffering from total locked-in syndrome, a condition which paralyzes all intentional body movement. His body could breathe, pump blood, and digest; he could watch, listen, and think just fine, but he did not have the ability to respond. It wasn’t until a neurologist on a quest to find misdiagnoses with an experimental new type of brain scan saw Rom that they discovered his mind was intact.
This might seem like a far-fetched aberration, but recent studies in the British Journal of Medicine and elsewhere show that incorrect diagnoses of a persistent vegetative state (or PVS) occur at an alarming rate – about 40-45 percent of the time. The reasons are several. Brain-scanning technology has not reached a level where it can clearly diagnose conscious from unconscious; the methods for diagnosis by observation all have serious flaws, and doctors can’t agree on which is best or how to make a better one; and reviews after an initial diagnoses are often too cursory to notice signs of improvement after the brain has had time to heal.
This reality creates a serious problem for the typical living will. The lion’s share of clients have them drafted to ensure they have a quick and peaceful passing instead of getting “Terry Schiavo’d,” and living wills often mention a PVS diagnosis by name as one of the triggers for the removal of life support. The result is that a person who could live a fulfilling life with quadriplegia (body paralysis) as so many others do may inadvertently be euthanized. Almost all misdiagnosed patients are completely paralyzed, and many suffer some loss of cognitive ability, so it is understandable that these new revelations may not prompt older clients to change their plans. For everyone else, though, it should be an important consideration in laying out your advanced healthcare directives.
Going forward, estate planning attorneys should keeping abreast of new developments in PVS diagnostics, to know the what/how often/for how long combination that best ensures a PVS diagnosis is accurate, and clients should strongly consider having those standards incorporated into the document itself.