Published in the April 11 – 24, 2018 Issue of Morgan Hill Life
Photo by Marty Cheek
James Ward at his desk in his Gilroy office. He works in the area of elder law and estate planning.
If you have estate planning documents, do you really know what they say? Do you understand the meaning of things and how the documents will be interpreted when you need someone to act for you?
Unfortunately, many people have documents that they don’t understand, or documents that don’t reflect their true wishes.
First, do you have copies of your documents in your possession, or with a trusted person? I recently had a crisis situation where the elder was very close to death. He didn’t want to go back to the attorney who had prepared the original documents, but he knew he wanted to make several changes. The attorney who had prepared the original documents refused to provide them to the elder so that they could be reviewed. Why would he do something like that? He either wanted to force the client to return to him so that he could bill more fees, or he was hoping to create a family feud where he could represent one of the parties in a long and expensive litigation war where the attorneys bill huge amounts and often get paid regardless of the outcome.
The refusal of the attorney to give his former client a copy of the file is a clear violation of the rules of professional conduct, but in many cases the attorneys who violate the rules receive no penalty or sanction. Sad, but it happens all too frequently.
Second, is the durable power of attorney effective now, or does your agent, who may be your spouse or child, have to jump through hoops to trigger the power of attorney into validity? That type of power of attorney is called a “springing” power of attorney, because it only springs to validity when, in most cases, two physicians have put in writing that the person who signed the document now lacks the mental capacity to handle their affairs.
This type of power of attorney is common in our area, but they’ve been outlawed in some states due to the problems they can cause. Most doctors are reluctant to write the capacity letters to properly conform to the requirements of the power of attorney, but the agent thinks that they can act and then they hit roadblocks when other people challenge the doctor letters and the effectiveness of the power of attorney.
Third, do you understand the distributions of the trust, and the rules to remove a trustee if necessary? How will the assets be distributed? I often get clients with trusts prepared by other attorneys and the clients tell me what the trust says, but they’re wrong! The original intent wasn’t properly translated to paper. Was the error due to a miscommunication between the client and the attorney, or did someone drop the ball at the time the document was drafted? What matters is that the document doesn’t represent the wishes of the client, and it needs to be changed before it’s too late.
If you don’t have your estate planning documents in place, get them done now to protect yourself and your family. If you already have estate planning documents such as a Trust, Will, Durable Power of Attorney, and Advance Health Care Directive, give them a careful read to make sure that they really reflect your wishes. If they don’t, get them changed. If you aren’t sure how to interpret them and you don’t fully understand their legal effect on you and others, seek a professional review and opinion.
The best way to protect yourself and your family is to live forever and never suffer any illness. If you can’t guarantee that with certainty, the second best way is to have the proper estate planning documents in place and fully understand their meaning.
James Ward is a longtime South Valley resident who lives in Morgan Hill. He went to law school in New England and earned a post-graduate law degree in Estate Planning at the University of Miami. Jim worked as an Estate Planning and Elder Law attorney in Florida, and then returned to open his law firm focusing on Estate Planning and Elder Law. He has offices in South Valley and Willow Glen.
