Legacy Assurance Plan: Making Sure Your Estate Plan is Customized to Do What You Want

Summary: Having a proper and complete estate plan is about more than just making sure that you have all of the documents needed for your plan. It is also about making sure that the documents you have are customized to achieve the estate planning goals you have. By working with an experienced estate planning attorney, you can get the well thought out plan you need to provide peace of mind for you and your loved ones.

Generally, if you have done very much research about estate plan, you probably know that there are certain documents that go into a complete estate plan. These include your will, your financial power of attorney, your healthcare power of attorney and your advance directive or living will (although some states combine these last two into one document.) Many complete plans also include a living trust to provide for the added benefit of avoiding probate.

Getting a complete plan, especially as a senior, is about more than just getting those documents. It is about getting the RIGHT version of those documents to best meet your needs. As noted above, people who desire to avoid probate may strongly consider including a living trust (or trusts) in their plans, while those who don’t value avoiding probate might not. Similarly, the nature of your goals and preferences may alter, not the number and type of documents in your plan, but the language that is (or is not) included within those documents.

Here’s how that can work with a hypothetical case: Jane Doe is a widow with four children. Jane’s health is declining. Her youngest daughter, Mary, moved in with Jane 10 years ago to provide in-home care for the mother. Because Mary has provided 10 years of care for no charge, Mary’s siblings agree that Mary should eventually receive Jane’s house. Jane, who is on Medicaid, recently broke her hip is now going to have to go to a nursing home to stay. The siblings want to transfer the title of Jane’s house to Mary now, with Mary’s brother, John, (who is Jane’s agent under her financial power of attorney) handling the transfer on Jane’s behalf.

Certainly, this family has many things to consider. They must make sure that, in making this transfer, they don’t do anything to jeopardize Jane’s Medicaid benefits. However, assuming that the family can do the transfer without causing Medicaid eligibility problems and assuming that all of the siblings remain “on the same page” about the transfer, there may still be a problem that would totally prevent the transfer. Depending on how Jane’s financial power of attorney is worded, John may not have the authority to sign over the house to Mary. Many financial powers of attorney do not give the agent named within them the power to make gifts of the assets owned by the principal (which is the person who is giving the powers or, in this case, Jane.) If John signs a deed in favor of Mary without property authority, that could cause problems for him, Mary and Jane.

Of course, in other situations, you may not want to have a provision in your financial power of attorney that gives your agent the authority to gift away your assets. You may prefer that your agent not have that much power over your assets. The key point is that each person’s power of attorney could be different based upon his or her individual needs. That’s why you need to make sure all of the documents in your plan are optimized for your needs, and are reviewed periodically to make sure that they remain ideally structured and worded to achieve what you want.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.