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Self Help and the Power of Attorney

April 23, 2012

I recently heard from clients who I had not seen in about eight years. At that time we had helped them with estate plans. They did not want us to draft anything other than their last will and testament. We always discuss the protective documents (living will, power of attorney, medical directives, etc.) with each estate planning client, but these clients wanted to take care of the other documents themselves. Essentially, they were going to go online, or to a store, to get a form or a ‘document kit’ and fill-in-the-blanks on their own ‘one day soon.’

One day soon never arrived.

I met with them at the nursing home where one spouse was convalescing from a near-death event. Now they need these protective documents as quickly as I can draft them. And therein lies the problem. . .

The Power of Attorney is a document that I compare with insurance. You buy insurance, pay the premiums and make sure your policy is close at hand in case you ever need it. But you hope you never need it. You should think of the Power of Attorney document in the same way. You prepare for the worst case scenario and then hope it never happens.

“What if I can’t take care of my own business, pay my own bills, because I am in a hospital bed recovering from an accident? Who will step in for me?” Those are the questions you should ask yourself. Now, before the need arises.

Self-help forms are fine, and you can fill them out yourself. So long as you know everything I know (and by the way, I’m a lawyer). Without this specialized knowledge of the law, the presumptions in the law, and the duties and obligations of individuals, you may innocently fill in those forms in a way that is not good. In the legal world, we often jokingly refer to such forms and will kits as “The Attorney’s Full Employment Act.” One lawyer could have been hired to properly execute estate planning documents. Instead, when things go awry because of badly drafted documents, and several beneficiaries think they are ‘entitled’ to a better position in an estate (or to ‘Grandma’s checkbook’), then all of the family members will hire attorneys to fight it out. “The Attorney’s Full Employment Act.

My clients were fortunate that they were able to call me a second time. Most aren’t that lucky. Most end up wishing they had done the right thing. But it was too late. Don’t make the same mistake. Take care of these very important steps now, ahead of time.

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