Articles Posted in Power of Attorney

A client came in to see us for their follow-up consultation.  The client shared that, in between their two meetings with us, the husband‘s brother had suffered a stroke and was now in a rehabilitation facility.  He was a bachelor.  He had no power of attorney or health care proxy.  He may or may not have had a will — they didn’t know.  Further, they were unable to get access to his apartment to clean out the fridge and get his clothes because he had failed to put them on the list of persons approved to enter in the event of an emergency.

One of the most overlooked areas in estate planning is the question of who you are responsible for.  Do you have a friend or relative who you know will need to rely on you if something happens?  Either they have no one else or everyone else is too far away.  If you have the responsibility, then make sure that you have the documents you will need to carry out that responsibility.  Otherwise, the challenges become of a magnitude greater.

Similarly, so many of our clients have adult children with young families.  Do you know whether your children have wills, powers of attorney and health care proxies?


    1. Makes sure your estate goes to whom you want, when you want, the way you want. Most estate plans leave the assets to the next generation outright (i.e., in their hands) in equal shares. However, with a little bit of thought on your part, and some guidance from an experienced elder law estate planning attorney, you may dramatically improve the way your estate is ultimately distributed. For example, you may delay large bequests until children or grandchildren are older or give it to them in stages so that they have the chance to make some mistakes with the money without jeopardizing the whole inheritance. Similarly, you may place conditions on receipt of money such as “only upon graduation with a bachelor’s degree” or “only to be used to purchase an annuity to provide a lifetime income for the beneficiary”. The possibilities, of course, are endless.
    1. Allows you to give back to the people and places that have helped you. Again, most people leave their assets to their children in equal shares. Yet time and again we see children who really don’t need the money or, unfortunately, don’t deserve it. Even when they do need and deserve it, there is a place for remembering those people and institutions who have helped make you what you are today.
    1. It proves stewardship by showing your family that you cared enough to plan for them. When you put time, thought and effort into planning your affairs it sends a powerful message to your loved ones. You are saying that you handled the matter with care and diligence. This will reflect itself in how the money is received, invested and spent by your heirs.

What happens if you have an accident or an illness whereby you are unable to handle your legal and financial affairs?  Many people incorrectly believe their spouse is legally able to handle their affairs. Similarly, a parent has no legal authority to handle the affairs of a child, once the child attains the age of majority – eighteen years.

Without a power of attorney, you would have to apply to a court to be named a legal guardian.  These proceedings are expensive, time-consuming and fraught with peril.  The judge has no obligation to name the spouse or parent as legal guardian and may appoint a stranger.  For example, the judge may feel that the spouse or parent has a conflict in that they are the beneficiary of the incapacitated person’s assets, or the judge may decide that someone else has more knowledge and experience in handling such matters.

Who should you choose as your “agent”?  In our experience, the vast majority of powers of attorney name the spouse first and one or more of the children second.  While on its face this seems reasonable, experience has shown it may not be a good idea.  We often need to use the power of attorney when the client is quite elderly and infirm.  Often, so is the spouse at that time.  Son or daughter wants to step in and help out with bill paying, etc. only to find they are unable to use the power of attorney for dad unless they can prove that mom can’t.

The Mississippi Court of Appeals recently decided that a man convicted of DUI manslaughter that led to the death of his wife can collect survivor benefits from the state. The late woman had designated her husband as a 40% beneficiary while the deceased woman’s sister was a 60% beneficiary. While Mississippi law permits spouses in the husband’s situation to still receive benefits, some states have prevented this type of result by altering statutory language. The husband previously pleaded and was sentenced to 25 years in prison with 10 years suspended and 15 to serve. The man later received a separate two-year sentence for possession of contraband. 

While the Mississippi Court’s decision might seem strange, it emphasizes the importance of understanding the basics about the New York Survivor’s Benefit Program, which will be briefly reviewed in this article.

The Role of the New York Survivor’s Benefits Program

Nobody likes thinking about serious illness, especially a serious illness that could lead to death. Unfortunately, such illnesses can cause massive financial difficulties for friends and loved ones which can in turn significantly deplete the assets you had been planning to leave to your heirs. The moral of the story is that, no matter your age, it is never too early to start planning for the potential need for end-of-life care. The following tips are adapted from a recent article on this topic found in USA Today, and they may provide you with some important concepts to consider when thinking about healthcare issues.

Be Explicit About Your Wishes

Telling people in passing how you hope to be cared for in case of serious illness is important, but it isn’t necessarily always enough. It is important to write down your wishes and be explicit about how you wish your health care to be handled. You should also work with your estate planning attorney to create documents such as health care proxy nominations and/or a living will that express your healthcare wishes in detail.

Most individuals recognize the importance of comprehensive estate planning, although they may still choose to avoid it. One important part of your estate plan is your power of attorney (“POA”). Basically, a POA is a document that nominates an individual to make legal decisions for you in the event that you are unable to do so for yourself. You can choose the extent of the decision-making power you vest in the individual you have chosen by working together with an experienced estate planning attorney to determine how to best represent your goals. However, it is important to be aware of some of the pitfalls that could weaken your POA. According to a recent article from Forbes, the following tips may help you do just that.

Use an Experienced Estate Planning Attorney

Too many people decide to cut corners by using any number of online forms and legal information available for download. However, these forms are not tailored to a client’s individual needs, nor do they help you understand important aspects about making sure your POA and other estate planning documents meet the needs you have expressed. Designing your POA and other estate planning documents with an experienced estate planning attorney can help you make sure that your estate plan complies with the law. This can save you and your loved ones time, money, and stress down the line. With something as important as estate planning, you want to be sure that you

Most estate planning advice stories include one theme over and over–plan early and update consistently. Because no one know what the future holds and life changes occur frequently, it is critical to ensure your legal planning will work as you want it to when you need it.

However, that does not mean that there is ever a point when it is too late and not worth crafting a plan. Taking the time to put affairs in order even in the midst of serious illness or terminal conditions can make a world of difference for a family. A recent article provides a helpful discussion that touches on some of the key issues with regard to “deathbed planning.”

Late Estate Planning

Celebrity estate planning complications and feuds are often used to illustrate basic planning principles or common problems. Perhaps none of those examples are as well-known, especially for New Yorkers, as the sad case of the estate of Brooke Astor. The legendary socialite and philanthropist died several years ago. Since her passing, a wide-range of claims were made regarding the distribution of her assets and criminal activity on the part of those responsible for her care and affairs in the later years of her life.

Astor reportedly suffered from Alzheimer’s at the end of her life–an affliction that similarly affects many New York seniors. Unfortunately, also like many others, it seems that her condition was abused by the very people who were supposed to look-out for her.

Astor’s son, Brooke Marshall, was criminally charged with exploiting his mother to funnel more money to himself. Marshall was ultimately convicted, along with a co-defendant, of illegally giving himself a $2 million “raise” to administer the estate. Claims also suggested that an amendment to Astor’s will in 2004 included a forged signature.

Before being overshadowed by the election, the talk of the social media universe in the past week and a half was Disney’s purchase of the George Lucas film business (LucasFilm). The film company owned all the rights to the mega-popular Star Wars francise, and the purchase might mean that another Star Wars film will be in the works in coming years. Perhaps the most eye-popping part of the deal was the sale price. Disney apparently paid a staggering $4.05 billion in cash and stock for LucasFilm.

Since the deal was announced many professionals in the fields of tax and estate plannining have chimed in, noting that the decision to sell now was likely a smart one by Lucas. It will probably pay many divideds in the future for himself and his family. At a general level, by cashing out now Lucas will spare his family the very difficult and complex challenge of handling these matters upon his passing. At 68 years old, hopefully that time is still several decades in the future; however, prudent planning is timely planning. In addition, selling the company allows Lucas to spend more of his times on philanthrophy–something that he has been committed to for decades. He explained recently that he plans to donate most of his wealth to educational efforts around the world.

Beyond that, the timing of the move was likely motivated by smart assessment of the current tax climate. As recently discussed in a Forbes article on the subject, the current capital gains tax rate and brackets are set to be far less favorable in the coming year. No matter who was elected this year, increases in the tax rates to some degree were likely. However, by acting now, Lucas may have saved significant sums on taxes as a result of the immense gain in value of his company since it was founded.

Mystery permanently surrounded the heiress Huguette Clark–a reclusive woman whose $300 million estate is often referred to as the last collection of wealth drawn from the American “Gilded Age.” Her father was a copper magnante many decades ago and was also a former senator from Montana. He is well known as the founder of the city of Las Vegas. Huguette inherited the fortune upon his (and her mother’s) passing. However, she never sought business or public notoriety like her father. Instead, she was intimately private. In fact, she reportedly spent the last twenty years of her life inside a New York City hospital–even when she was healthy enough to live on her own.

Huguette eventually passed away in May of last year. As often happens in cases of great wealth–particularly when there is much mystery surrounding one’s life–various fights ensued over control of the fortune.

A trial in the case is set to begin soon, according to a recent NBC report on the case.

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