Archive for Durable Power of Attorney
THE VALUE OF CONSISTENT PLANNING
With the Walk to End Alzheimer’s coming up this weekend and National Long-Term Care Awareness Month starting today, elder law is on our minds. So, this is the perfect time to share an elder law story that illustrates the value, and importance, of consistent planning.
Our client, “Diana”, thought that her father, “Fred”, had taken care of his disability planning by executing a power of attorney, naming Diana as his agent, several years ago. However, when Diana’s mother, “Mary”, died, Mary’s former caregiver took control of Fred and his affairs. The caregiver introduced Fred to an attorney who revoked the power of attorney to Diana and drafted a new power of attorney, as well as other documents, in favor of the caregiver.
Diana was forced to spend a significant amount of money to go to guardianship court to fight for the right to help her father take care of himself. The caregiver has isolated Fred from his family and tells him awful lies about his daughter. She may even have influenced Fred to change his estate plan. This is a dire scenario, but unfortunately not an uncommon one.
We include comprehensive disability planning documents in our estate planning packages as a matter of course. More importantly, we have our clients re-execute all of their documents every two years so that we build a record of consistency. If Fred had given a power of attorney to Diana in 2006, 2008, and 2010, his intent would be clear and the court likely would have thrown out the new power of attorney early on, allowing Diana to protect Fred and his assets from the predatory caregiver.
ANOTHER ONLINE SNAFU
So, you are tired of me getting up on a soap box preaching about the evils of using online services to prepare Estate Planning documents. Sorry, here I go again!
We recently had a client bring into the office an online power of attorney that was prepared and signed on July 31, 2012. This is precisely ten months after a substantial change in the Florida power of attorney law went into effect (and more than a year after the change was announced by the Florida Legislature). This online document did not contain the language necessary to make the power of attorney valid under the new law (special new language to grant “gifting” powers). This meant that the power of attorney was completely worthless and the client was unable to use it to accomplish the purpose for which it had been written.
If the online companies have not gotten their act together to change their forms in over ten months, can you really rely upon them? I don’t think so. To put it bluntly, based upon what we are seeing, only a fool would rely on online document preparation services to accomplish their estate planning goals.
“THE PLAYERS” OF ESTATE PLANNING
The beginning of May always brings national attention to the Jacksonville area when the Players Championship comes to town. For one week each year, the Players is the hot ticket in town and for good reason; the tournament, which is part of the PGA tour, brings international golf superstars to town and raises millions of dollars for local charities. As Jacksonville estate planning attorneys, we find two different meanings in the words “the players”: we are reminded of all the positive energy that flows through the city at the time of the tournament, but also think about the players of estate planning.
Your estate planning “players” are the people you choose to protect your assets during your lifetime and distribute or manage them after your death. This would include the trustee(s) of your trust, the executor(s) of your will, and anyone to whom you have given a durable power of attorney. Other important players are those individuals to whom you have granted access your health care information or the power to make health care decisions for you, such as your designated health care surrogate.
The players you choose for your estate plan should be people that you trust completely and who know you well enough to make the decisions you would have made. They must also be willing and able to perform their duties. If it has been more than a couple years since you designated your estate planning players, you should review them to ensure that your choices are still appropriate and relevant today.
APRIL IS DONATE LIFE MONTH
The statistics speak volumes:
• More than 100,000 men, women and children currently require life-saving transplants
• Every 10 minutes, another name is added to the National Organ Transplant Waiting List
• On average, 18 people die each day due to the lack of organs available for transplant
National Donate Life Month was instituted by Donate Life America and its members in 2003 to help address this tragic situation. As estate planning attorneys, we are well aware of the stress families endure hoping for a loved one’s potentially life-saving organ transplant—and the anguish they suffer when one is not available in time.
We therefore welcome this initiative and suggest, if you haven’t made known your wish to be an organ donor, or if you’ve only put it on your driver’s license, that it’s a good idea to fill out an organ donor card or register as an organ donor at www.donatelifeflorida.org. If you take this additional step, you can specify which organs you would or would not like to donate and it will be easier for health care professionals to determine your organ donor status.
We also applaud the efforts of participants in National Healthcare Decisions Day (NHDD), which falls on April 16. The focus of NHDD is the importance of planning for future care through advance directives such as health care powers of attorney and living wills. Together, these initiatives go a long way toward creating greater public awareness about the need for, and benefits of, proper planning and communication about one’s health care wishes.
While organ donation and health care advance directives are deeply personal decisions, we hope you will consider the importance of making your wishes known in advance, discussing them with loved ones, and making sure they are both legally documented and easily accessible during an emergency, or in the event of incapacity. If you would like to make changes to your advance directives, or any other updates to your estate plan in general, we are here to assist you.
