The Non-Professional Pitfall: The Costly Mistake of Putting Your Estate Plans in the Hands of the Wrong Person

Imagine this: you’ve visited The TGQ Law Blog and you’ve read all about estate plans, wills, and trusts. You then went to a workshop held by Attorney Terrence Quinn and you’ve listened to him expertly explain the importance of estate planning, and you began to think about how difficult it would be for your loved ones if you passed away without an estate plan. You become really serious about it- so much so, that you choose an online legal software to prepare your will, powers of attorney, etc. Or better yet, you know someone whose distant cousin may have mentioned that they might know how to draw up a will.

I mean, how difficult can it be?

You’re simply writing down your wishes for the disbursement of your lifelong earnings and acquired assets and appointing agents to make financial and medical decisions for you. That is, until the unthinkable occurs for you and your family members, and everything is a mess. Your will doesn’t hold up in probate court because of an error, there’s outdated information, your beneficiary passed away and no one else is listed! Your family is distraught- who will they turn to, to help them sort all of this out? Is it too late to hire an expert estate planning attorney?

Online Wills

Various online publications will advise you that legal software is just as good as an estate planning attorney. These software programs will promise you a quick, cheap, and easy will-planning process. However, estate plans are not one-size-fits-all. Most of us are typically meticulous about every detail in our lives. Whether it’s choosing the perfect job, finding a good school for our children, or trusting the right caregivers with our parents, we’re careful. But when it comes to estate plans and planning for what happens posthumously, or in the event of the decline of our health, the attention to detail doesn’t seem to withstand. A cheap online estate plan can cost you- and your loved ones- more in the long run, even before you pass away. Click To Tweet When thinking about your loved ones, you’ll want the best option that will ensure them the best care – not the cheapest.

Hiring an Estate Planning Attorney

When hiring an estate planning attorney, the last thing you’ll want to do is hire a jack-of-all-trades, or worst yet, a jack-of-no-trades. After all, a will is no laughing matter- there are important life events and circumstances that weigh into your decisions, such as family members with disabilities, minor children, business assets, etc. For every unique life circumstance, there is a possible unique problem that can arise. At The TGQ Law Firm, our attorneys are trained to and can guide you in the right direction. They have the training and experience to be able to foresee possible conflicts that may occur before they happen.

Don’t leave your plan in the wrong hands. Contact The TGQ Law Firm today to help you plan your family’s next steps.

what is estate plan

What Is An Estate Plan?

What is in an Estate Plan? Inquiring minds want to know.

To recap, an estate plan makes sure that your wishes about your life and your stuff are met, during life and death. But what exactly is an estate plan?

You may have heard of a will or a trust in television shows and movies, especially after a character dies and the entire family fights over what they are getting from the estate. You may have also heard of a will in light of recent celebrities like Aretha Franklin or Prince who both passed without having a will or trust in place. These documents are the foundations of an estate plan, but there is more to an estate plan than just a will or trust.

What an Estate Plan Includes

Each estate plan includes a will, a General Durable Power of Attorney (GDPA), a Healthcare Power of Attorney, HIPAA release, and Consent of Digital Assets, among other essential documents that ensure not only your property and assets are taken care of, but you and your family are taken care of as well. Each document is created between the client and their attorney to meet the specific needs and wishes of the client.

Will

The Will is probably the most recognizable document of those discussed above as it identifies your intentions after your death. A Will lists your Personal Representative (executor)- the person in charge of managing your estate in Probate Court. This includes what happens to the money and assets left in your estate.

But what a trust does not do is keep your assets and family out of probate court when you die. Instead a Will informs the probate court of your intentions, as a will is only for probate court having no value outside of an open probate case. If you want to protect your family and assets from the costliness and publicity of probate court you need more than a will. That’s where a trust matters.

Trust

A trust is often a better choice for people wanting their family and assets to be managed without local court involvement. Trusts are not solely for married or wealthy individuals. At its core, a trust is designed for anyone wanting their family and assets managed and administered outside of the court process. Since nearly everyone prefers to avoid probate court, a trust should always be considered and evaluated as a potential option for your plan.

General Durable Power of Attorney

What happens if you cannot make decisions for yourself when you are alive? If you have a General Durable Power of Attorney (GDPA), Healthcare Power of Attorney, and HIPAA release, everything will happen according to your wishes. These documents give the person(s), also known as your agent(s) the ability to handle your financial affairs if you happen to be incapacitated (GDPA), and to gather your health information and make your health decisions if you can’t make them yourself (Healthcare Powers of Attorney and HIPAA release). In these documents you are able to decide what kind of power you want your agents to have while acting on your behalf.

You may be thinking, “I already have all these documents!” That’s great! You are ahead of most already. Please keep in mind, however, that it is critical to review your trust yearly so you can make sure it still complies with the estate laws of your state along with your personal wishes, and that it is adjusted for any life changes you may have.

If you need a will or trust, it is important that you have an attorney that specializes in this type of work to assist you in creating your documents. Some people point to online resources for this kind of document creation, however, there are many pitfalls in using online sources. These are discussed in the articles here and here. Be sure to hire an attorney that specializes in estate planning, wills, and trusts, like the attorneys at The TGQ Law Firm so you can be sure that you are getting exactly what you need.

 

power of attorney

Power of Attorney: Why Everyone Needs One ASAP

Consider this:  Who would make decisions for you if you were unable to? Think about it. Are you sure that person would make the right decisions for you? What decisions would they make? In a recent estate planning seminar I had a conversation with a young woman who was hospitalized the year before. She was in the hospital for several weeks. During a portion of the hospitalization she was unable to make medical decisions for herself and she could not take care of the business of paying her rent, bills, or making arrangements for her young son. This was an unexpected medical emergency for which she had not planned. She had no power of attorney in place that designated who would do these things for her if such circumstances were to arise, and so no one was properly positioned to help her.

Another situation that I am aware of that highlights the need to address these important questions occurred when a longtime partner of a man that I know became ill. His partner’s family would not let him have any say in her medical decisions once his partner became incapacitated because her family members were considered the next of kin and there was no power of attorney that designated who would make decisions for her. I’m certain that this is not what she wanted, but no one could be certain of her wishes because she had not written them down in a legally sufficient manner.

Both of these situations caused a great deal of stress, grief and turmoil for everyone involved and much of it could have been avoided in both situations had she written her intentions in a properly-drafted Power of Attorney.

So, what is a power of attorney?

A power of attorney is a legal document that gives someone the authority to make decisions and handle business on your behalf while you are alive. This person is called your attorney-in-fact (when handling financial and asset matters) and your patient advocate (when handling medical matters).  This appointed individual can also be referenced as your “agent” in either document or capacity. It is important to remember, however, that financial and healthcare Powers of Attorney are only effective while you are alive. Click To Tweet Once you are gone, the Power of Attorney is terminated and the attorney-in-fact and patient advocate no longer have authority in that capacity to manage your affairs.  

Powers of Attorney can take on many different forms, serving multiple purposes. They can also grant authority and power in many different ways. Click To Tweet

For example:

 

    1. Limited Powers of Attorney – In a Limited Power of Attorney, the attorney-in-fact is given authority to act on your behalf for a specific purpose and usually for a limited amount of time. This person may be handling specific business for you while you are out of town, having surgery, etc.;
    2. General Power of Attorney – In a General Power of Attorney, the attorney-in-fact is given all the authority you have. A General Power of Attorney may be used when someone is still able to make decisions on their own but may need another person they designate to handle financial matters for them. The attorney-in-fact can sign documents for you. They can completely represent you in such matters for as long as you are alive.
    3. Durable Power of Attorney – A Power of Attorney is “Durable” when it continues even after you become incapacitated. This means that your attorney-in-fact will maintain the authority he/she has on your behalf even after you cannot make decisions for yourself. This particular Power of Attorney can be written to be limited in scope or general as described above.
    4. Springing Power of Attorney – In a Springing Power of Attorney, the authority to act on your behalf is given to your attorney-in-fact once you are incapacitated and only then. In “springs” into relevance if and only if you cannot make decisions for yourself.  This is an important factor of this particular type of power of attorney because what is considered incapacitated can vary. Consequently, you need to make sure that the attorney that you hire to create your power of attorney is able to clearly describe what it means to be incapacitated to you and that definition is what is clearly described in your Springing Power of Attorney.
    5. Patient Advocate Designation and Healthcare Declaration – with a Patient Advocate Designation and Healthcare Declaration you are appointing the person that will handle medical matters and decisions for you (patient advocate), while also identifying your end of life and advanced directive decisions.  Matters involving “resuscitation”, life support, organ donation, etc., is discussed in this document. Typically a healthcare declaration is drafted in a springing form so that no one can make these “life or death” decisions for you unless it has been determined that you are unable to do so on your own behalf.

 

 

One thing that is for sure is that life happens and at any moment you may need someone to have the authority to act on your behalf Click To Tweet Consequently, everyone 18 years of age and older needs to have a Power of Attorney regardless of assets and family make up.  Without a valid Power of Attorney in place no one knows your wishes, no one has authority to handle business on your behalf, and no one can make decisions for your without probate court authorization.

At The TGQ Law Firm we have years of experience helping people identify what they need and helping them get those needs met. Call us today to dot every “i” and cross every “t” and to make sure you have a Power of Attorney in place. We are here to help.  

For more information regarding Powers of Attorney please visit HERE to view a brief video wherein our firm President, Terrence G. Quinn, Esq., discusses Powers of Attorney in greater detail.

If you have additional questions, contact us today to set up a consultation.

what is a will

What Is A Will?

There are many reasons why people may not have an estate plan and we’ve heard most of them. The reasons could be that you’ve just procrastinated, maybe you don’t understand what a will or trust really is, or maybe you don’t like to think about death. Many don’t want to “jinx it” or having this conversation just gives you an eerie feeling. You may even be thinking, “I have a life insurance policy with a beneficiary listed. My wife is a joint account holder on my bank accounts. The children will automatically receive everything if I pass on anyway! Everything will be ok.”

While some of these misconceptions may become reality in a perfect world, if any part of ends up imperfect, problems will arise. In the event of your death, everything will not be ok.

Let’s add a bit more context:

I would like to ask you a few questions. If you’re willing, please answer them to the best of your ability with a “yes” or “no”:

  • Are there any non-immediate family members that you would like to benefit from your assets after you’re gone?
  • Do you have any family members that you wouldn’t want to benefit from your estate?
  • Are you a single parent with minor children?
  • Do you have specific instructions or wishes for who will receive your various assets when you pass?
  • Would you like to prevent the court from determining who will be granted rights and liberties over your estate?
  • Would you like to continue giving to your selected charities even after you pass away?
  • Would you like to prevent your estate from falling into the wrong hands (for example, an estranged ex-partner, the other parent of your minor child, or a ne’er-do-well family member)?
  • Would you like to be protected in the event that you suffer a debilitating disability?
  • Do you care about posthumous details, such as your funeral arrangements?
  • Do you own a business?
  • Do you own investment properties?
  • Is it likely that family disputes may arise over your assets after you’re gone?
  • Would you like to make sure the public does not have access to your asset, debt, and family information after you’re gone?
  • Do you have a child or an intended beneficiary that has a disability that you want to benefit from your estate without jeopardizing governmental support?
  • Do you have assets or property outside of your state of residence?

If you’ve answered “yes” to just one of these questions, then you need a plan. If you’ve answered “yes” to more than one of these questions, then you really need a plan.

A properly drafted plan typically determines who will carry out your wishes, who will inherit your assets, how your assets will be received, and who will care for your minor or disabled children. Click To Tweet Many people believe that estate plans are only necessary for the wealthy, but as you can see from the above exercise, nearly everyone needs a plan. An estate plan provides for a smooth transition when you pass. It can prevent your estate from going through a lengthy, costly and public probate process once you are gone or incapacitated. Just imagine: no turmoil, no family feuds, and no clamoring over your assets. You can truly rest in peace!

In the age of access, beware of online legal websites that promise you a will with a simple click of a button. These “services” will likely not only leave out important details pertaining to your estate but in the event of any life changes (because they will occur), they won’t be as agile in amending your will. An online legal service won’t know who you are, what your concerns are, and when to reach back out to you to update your records in the case of estate laws changing or your personal situation changing- it all falls on you. At The TGQ Law Firm, we’re with you every step of the way, through every life change, every question, and every concern.

Life is unpredictable but one thing you can always count on, without a doubt, is that The TGQ Law Firm attorneys and staff will be by your side through it all. Contact us today to discuss your wishes for the future.