July 3, 2009

Getting Prepared...

Hopefully, you have organized all of your financial matters. If you did, you now have a grasp on where everything is and how much you have... now what?

We are moving on to the next step in getting your financial life in order. Today we will discuss: Durable Power of Attorney (DPOA); Medical Power of Attorney (MPOA); Living Will; and Will. Yes, this is serious today.

I have been contemplating how to try to explain everything that we cover when someone comes into our office to discuss these items, and frankly, it is tough and has taken me a few days longer than I thought. Everyone is different and everyone's holdings are different. What works for one person may not work at all for someone else. Below I have given you some ideas and things to think about, but PLEASE consult with an attorney or at least someone knowledgeable in estate planning.

Remember, these are some of the most important documents you will ever have, so it is best to get them done right and by a good attorney. Generally, preparing all of these documents at once can have a total cost of just a few hundred dollars, but the knowledge that it is done right removes a huge burden. Also, laws vary by state, so it is always best to have someone that really knows what they are doing in your state for each document.

Durable Power of Attorney (DPOA) - A power of attorney is a document in which you state that you give someone else (usually a relative or friend) the authority to make certain decisions (generally financial) and act on your behalf. The person to whom you give these powers is called an "agent" or "attorney-in-fact." You are called the "principal." Just because the word attorney is used does not mean that the person you give authority to has to be a lawyer.

Your agent is duty bound to make all decisions in your best interest. They are essentially "you" when they make decisions. Also, a durable POA allows your agent to make decisions for you after you have become incapacitated.

You CANNOT make a DPOA after you have become incapacitated. You must know and understand what you are doing. A person who is mentally incapacitated is not capable of meeting these requirements. That is why it is good to get it out of the way now.

Additionally, at your death any power of attorney becomes null and void. From that point forward, your estate has claim to all of your holdings, and power passes to your executor.

Medical Power of Attorney (MPOA) - Much like the DPOA but this document allows the agent to make health care decisions on the principal's behalf should the principal be unable to make such decisions. By the way, an agent may make health care decisions on the principal's behalf only if the principal's attending physician certifies in writing that the principal is incompetent. The physician must file the certification in the principal's medical record.

In most states, your spouse is allowed to make medical decisions for you if you are unable, BUT if your spouse is unable to make decisions for you (unreachable, incompetent, etc.), then NO ONE is allowed to make those decisions without going to court first. Yes, that means even your parents, brother, sister, children, etc. are all powerless. Once you reach the age of majority (18 or 21), your parents' power is gone.

I was at a conference discussing MPOA's, and the attorney giving the talk had his own horror story. His son (22) had an accident, was in a coma, and required medical decisions to be made. His wife and him showed up to make those decisions on behalf of their son only to find out that they were powerless. He literally had to petition the court to be allowed to make those decisions as the guardian/agent... not a father. And, this is what his specialty was. He had forgotten to take care of his own family.

*** Note - Under a MPOA, to keep your spouse in charge, name your spouse as your primary agent, then start your list after them. This takes the guess work out and any squabbles. For example, I would name my wife, my sister, then my brother (rarely are all three together in the same place). This allows me the best possible chance that someone else would be available to make those decisions that actually knows me.

Living Will - A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician's directive.

Generally, a living will describes certain life prolonging treatments. You, the declarant, indicate which treatments you do or do not want applied to you in the event you either suffer from a terminal illness or are in a permanent vegetative state. A living will does not become effective unless you are incapacitated; until then you'll be able to say what treatments you do or don't want. They usually require a certification by your doctor and another doctor that you are either suffering from a terminal illness or permanently unconscious before they become effective as well. This means that if you suffer a heart attack, for example, but otherwise do not have any terminal illness and are not permanently unconscious, a living will does not have any effect. You would still be resuscitated, even if you had a living will indicating that you don't want life prolonging procedures. A living will is only used when your ultimate recovery is hopeless.

A living will is different from the MPOA. The MPOA allows the agent to make decisions when the principal is unable to do so, but the ultimate prognosis is not terminal. The living will comes into play only when the doctors believe there is a terminal illness or permanent vegetative state.

Will - Making a will is a necessary and usually fairly simple process that can save your family time, money and grief as well as give you peace of mind.

A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. There are several types of wills including: Testamentary (is the traditional type of will with which most people are familiar. It is a formally prepared document that is signed in the presence of witnesses.); Holographic (no witnesses and rarely are approved by the court); and Oral (spoken testaments given before witnesses that are not widely recognized from a legal perspective).

Creating a will gives you sole discretion over the distribution of your assets. It lets you decide how your belongings, such as cars or family heirlooms, should be distributed. If you have a business or investments, your will can direct the smooth transition of those assets (for businesses it is called a succession plan).

If you have minor children, a will lets you provide for their care. If you have children from a prior marriage, even if they are adults, your will can dictate the assets they receive. Creating a will also minimizes tensions between survivors. Relatives battling over your possessions can weaken what may have otherwise been a strong family.

While wills generally address the bulk of your assets, there are a variety of items that are not covered by the instructions in a will. These items include community property, proceeds from life insurance policy payouts (beneficiaries are dictated within the policy), retirement assets (IRA's, 403(b)'s and 401(k)'s are directed by beneficiary designations), assets owned as joint tenants with rights of survivorship and investment accounts that are designated as "transfer on death."

If you do not know who the beneficiaries are of your 401(k), 403(b), IRA, life insurance policy(ies), get that information now. Your will CANNOT change the directions already on file for those accounts and policies. For example, I could have my wife be the sole beneficiary of my IRA in my will, but if my IRA account application says my brother and sister get it... they get it not my wife. This is very important when people get married, have children, divorced, remarried, etc. I saw one person forget to change an account have his ex-spouse inherit his IRA and not his current spouse.

If you do not have a will, you die "intestate." In such a case, the state will oversee the distribution of your assets. Contrary to popular opinion, the state does not inherit your assets, but rather distributes them according to a set formula. The formula often results in half of your estate going to your spouse and the other half going to your children (in Georgia a spouse can get as little as 1/3 of the assets). Such a scenario can result in the sale of the family home or other assets, negatively impacting the surviving spouse. This can create financial and emotional difficulties, particularly if your spouse was counting on the bulk of your assets to maintain his or her standard of living. Further complications can arise if your children are minors, as the court will appoint a representative to look after their interests.

General Notes - Over the years, I have seen some issues develop even when all parties have the best intentions.

  • Consult with an attorney. I cannot stress that enough. This is a pretty decent guide, but this is not the end all be all guide. Your state may be different, and you want someone that has knowledge of those differences informing you.
  • Find a few people that you trust to be your executor (executrix), POA, and MPOA and list them in order than you want them to make decisions. Name three people for all - Primary (first choice), Contigent (second choice), and Tertiary (third choice).
  • Sometimes the best executor is a non-family member while the best POA and MPOA is a family member.
  • Co-executors sounds nice, but it can cause issues. If one executor wishes to sell a property and the other does not, they must come to an agreement or the court must get involved. Property could be as small as jewelry or as large as a building. If there is a dispute, the court will try to get the co-executors to reach a financial agreement amongst themselves. If they cannot, then the court must get involved.
  • Have a talk with your agents/executors. You can schedule a meeting, make a phone call, or just have a chat, but let them know what you are thinking and where your papers are.
  • Safety deposit boxes are generally NOT a good place to have your original POA, MPOA, Living Will, or Will. The bank will want to have an original before they allow your agent to the box, thus a court order would be needed. Have a copy with your lawyer, financial advisor, and/or accountant. These copies should contain a letter/note stating where the original is held.
Conclusion - Ultimately, what you are trying to do is make it so you have some control over items when you have no decision making capacity. You are trying to take the courts and family squabbles out of the equation and streamline the process to handle each situation. These are big decisions but ones that should help lift a burden for you when you are finished.

Finally, remember that a little preparation now will save time, money, and most importantly heartache for those you hold most dear at a stressful time. My advice is to do everything you can to lessen that stress as much as possible.

No comments: