Michelle C. Berk, Esquire Explains
"What Estate Planning Documents Do We Need?"

Jim:Estate planning is often thought to be something that only wealthy people need to think about. Why do people from all walks of life need think about estate planning?

Michelle:To start with an anecdote, once I was making a house call to a client to write her Will, imagine that! Her grandmother was there so I inquired if I could write her Will too. The granddaughter, her caregiver, replied that grandmom was broke and that she, the granddaughter took care of her. We agreed there was no need to write a Will since she was essentially destitute. Imagine my surprise when the granddaughter called me years later asking for the Will because grandmom received a huge class action settlement from a pharmaceutical company after she passed away. When I reminded the granddaughter and surmised she was the sole heir to inherit, she said there were 5 bad children who never took care of the grandmother. Guess who inherited under PA law? The children and the granddaughter who took such good care of the grandmother and paid all her bills received nothing. So now we write Wills for everyone. Also, we say, it is “Your Will, Your Way!”, so your wishes are met if you write a Will with your attorney.

Jim:What are the main estate planning documents you prepare for clients and what purposes do they serve?

Michelle:Power of Attorney aka Durable Power of Attorney permits someone to act as your Agent for financial matters if you are unable to act for yourself. The HealthCare Power of Attorney and Living Will serves the same purpose, your Agent can make health care decisions for you if you are unable to do so. In the event of serious, terminable illness, or permanent unconsciousness, your Agent can make even end of life decisions as you have indicated you would want by writing them in this document. Then of course, the Last Will and Testament is so important as we know. The Power of Attorney terminates upon death so the Agent no longer has any powers so a Will is also needed for that reason. Those are the top 3!

Jim:You just discussed powers of attorney, are there special circumstances when POAs are used in guardianships? If so, can you elaborate as to how this works?

Michelle:It is possible to avoid a guardianship if someone has an effective Power of Attorney. That is preferable since then you have planned and designated whom you would chose as your first and second choice for Agent and delegated and listed what powers they have. If you don’t have a Power of Attorney, or if it has been revoked or there are some unusual circumstances, someone would have to file to have a guardian appointed. Being appointed an Agent under a POA may influence you in being appointed Guardian, unless there are some circumstances where the Agent is not acting in the best interests of the Principal and if proven, they will not be appointed Guardian by the Court.

Jim:If someone has a family member or friend who may be suffering from dementia, or has been left incapacitated from some other condition or accident, how can they ensure that someone gets appointed to look out for the person’s best interest?

Michelle:If the individual lacks capacity to appoint an Agent under a POA, then in that case, their loved one or friend, or even others can petition the Court to have a Guardian appointed, with them or a professional such as a Geriatric Care Manager or other independent third party, or even someone else.

Jim:In order to plan ahead to have documents prepared by an attorney what should folks do?

Michelle:Jim you raised a very good point! Legal documents including all the ones we have discussed, should ONLY be prepared by an attorney. So many of the on line resources offered are not written by attorneys in the state where you reside. Also the internet or some other provider does not have the benefit of experience, a law degree and meeting with you in an attorney-client relationship to carry out your wishes and write the correct documents for you. To prepare for that relationship and meeting you should be able to indicate the extent and type of assets you have, since there are different ways to designate beneficiaries on different types of assets, such as IRAS, etc. It is also helpful to think about whom you would select as the best first and second, or even more, choices for your Agent under both your Financial and Health care Power of Attorney and Living Will and to have their contact information since that is needed. It is also helpful to plan ahead and know who you would like to select as the beneficiary of your estate, and your Executor, and again, plan for contingent beneficiaries, if they pass away before you do, g-d forbid, and if they can’t serve as Agent or Executor in the future. And to end on an upbeat note, planning ahead is the best way to ensure your wishes are met for the future, whatever it may bring!