provide support for children until an age you select, when you think they will be ready for a lump sum
set aside funds to be used for post-secondary education or training
leave a legacy for those with whom you share your life
So, how do you get it done? Mostly you:
see an estate planning attorney
talk about what you want and answer some questions
sign the documents
What’s the result? Why is it so nice to have your estate plan done? You have seen the many great reasons, for you, and for your family. It is really very simple to get this done. And, your part is easy.
Power of Attorney: what is it? This legal document allows you to appoint someone to act on your behalf, but not against your competent wishes.
What does it really do, and why should that be so important.
What does a Power of Attorney document provide?
In a Power of Attorney document, you appoint someone to act on your behalf for a great number of areas. While most people use the term “power of attorney” for someone they name, the appointed person is actually your “attorney in fact.” This trusted person can deal on your behalf with a number of business and financial areas, once appointed.
banking or credit union business;
taxes and insurance;
real estate or lease management, sales;
post office business; and
goods or services contracts.
The above list is not exhaustive. It only shows some of the variety. If you grant a medical power of attorney, you can authorize your attorney in fact to make medical treatment decisions, access records, and give or withhold consent.
So, why is a Power of Attorney document so important?
As an adult, if you are absent, unconscious or impaired, no one may have inherent legal authority to act on your behalf. Do you doubt this? Well, try contracting with a company or a bank on behalf of someone else — even your spouse. They are not likely to recognize your authority without the person’s signature or without you being appointed.
Here is where this authority becomes effective, efficient and even vital. Perhaps you have heard stories of people who have either been in some kind of accident. No doubt, dementia or Alzheimer’s finds too many of us and our family. If they reach the point where they no longer have legal capacity, it is, unfortunately, too late for them to appoint an attorney in fact. They can no longer select someone to act on their behalf for financial and medical issues. Without legal capacity, they just cannot make this appointment.
How does someone get authority if there is no Power of Attorney document signed?
So, without the signed Power of Attorney document, this may be an adult for whom no one has authority to act. To get business/financial and medical authority, even a spouse is going to need to go to court. In Kansas, one would file what are called Guardianship and Conservator proceedings. They give notice to close family and seek to be appointed by the Court. They seek appointments as Guardian (to care for the person and medical needs of their loved one) and as Conservator (to care for the assets and financial needs).
First, the Court must determine that the loved one is an adult with an impairment. Then, the Court must weigh whether the petitioner is a fit person to act in this capacity. If the findings are both positive on those questions, the petitioner may be appointed. A Court Order memorializes their authority. And, they may need to submit plans for acting in both roles. Then, they will likely have to file reports with the Court every year for both the guardian and the conservator roles.
Power of Attorney: what is it? This document appoints someone you trust to act on your behalf. Simply put, this signed document can save a lot of trouble. Surely, signing it is much, much less daunting than going through the Court for an appointment. The Power of Attorney can save your family weeks and expenses seeking to have someone granted authority to act on your behalf.
But let’s be frank. If you begin to slip, I believe that you would prefer to have planned for what happens. Being at the mercy of the plan of someone else is not probably all you are hoping for.
So then, what plan might we put in place?
First: a Trust that contemplates the possibility of you coming to a point where you want a little help; and
Second: a Durable Power of Attorney document: you appoint someone who you trust to care for you and your finances.
Hopefully, you have some notion of what is a Trust.
If not, please take 4-5 minutes to watch one of my other videos. Toward being ready to take care of you during your life, your trust can help. It can provide that a trusted person will become the Trustee (basically the administrator) of your Trust. This Trustee, if you should need help, can muster assets of your Trust to be available to you and for your benefit. Your Trustee will have limited powers. They will not have authority to grab up your trust assets and do whatever they like. Instead, you name them as a trusted fiduciary, who is bound to act by the provisions of your Trust document. They may act only in your best interest, consistent with the terms defined in your Trust. This is the side of your estate plan which provides your support.
And how will your Durable Power of Attorney help?
In your Durable Power of Attorney, you will name someone you trust who has authority to care for you, personally. And you also name someone who has authority to make medical decisions with and for you. This can be the same or different people, and they only have authority to act along with and not against your competent wishes. In other words, your Trust and Trustee work to fund and support you, while the person/people named in your Durable Power of Attorney document make sure your care is accomplished. This person may deal with the the bank or pharmacy for you, even the cable company or post office.
In summary then, with the tandem of your Trust and someone appointed in your Durable Power of Attorney, you can know that you have put a dependable structure in place. You can be prepared in the event something should happen. Now, compare this to the notion that maybe you do nothing. Then, if you should need care, your family is left to decide how to go about marshaling assets and personnel to help with your care. This may go well. And, it may not.
I don’t know about you, but I want to be part of creating that plan for my life.
So, how can my estate plan help if I become unable to care for myself? Your Trust can provide you the support you need. Your Durable Power of Attorney can appoint someone you trust to help you with all sorts of things.
How can you take care of kids in your Estate Plan? nominate caregivers; provide assets while child is minor; support education; trickle out distributions.
Nominate Caregivers for Surviving Minor Children.
Sometimes, parents of minor children pass away. It is best if you have thought about who may care for them. Of course, this is a horrible thing to consider. However, the surviving minors in this situation need a guardian and conservator to be legally appointed for their care. The guardian cares for the person and their health. The conservator cares for the finances and assets of the minor. The same person can serve in both capacities. A Kansas court is to give priority to nominations of the natural guardian for minors. You can take care of this easily in your estate plan. If you do not, then the court may look to family or other interested persons in making these important selections.
Provide Assets for Support While Children are Minors.
You may set aside funds to be held in Trust to provide for the care of children while they are minors. Your nominee for conservator may be entrusted to spend assets on behalf of the children for health, welfare, maintenance and support. In other words, you may be in a situation where you are asking that someone take care of your children so long as they are minors. Providing funds to support that effort goes hand-in-hand.
Set Aside Funds for Education.
Many people decide to allocate funds to support education (after high school) for their children or grandchildren. In a Trust, we can set aside funds so that the trust distributes, for example, to satisfy the need that other scholarships or financial aid may not fill. And — if you like — the trust may limit to a certain maximum dollar amount how much may be distributed to such child, in total or per school year from such fund.
Provide that Distributions may be Trickled Out.
Trickling out distributions may help provide income over time for your beneficiaries. It may also minimize tax consequences to them. I have written a lot of trusts wherein people designate that final distributions to their children go partially at, for example, ages 22, 26 and 30. People pick a variety of ages, but the idea is that your child does not receive an additional $50,000 in one year. But instead, perhaps they receive those assets (and interest) over the course of three distributions in different years.
Your trust can also provide that distributions coming originally from an IRA are spread out a bit. The same logic applies: your trust distributes to a beneficiary in installments over a few years. This spreads out the income to the beneficiary and may allow the assets to earn interest or dividends during the distribution period.
How can you take care of kids in your Estate Plan? It is not that difficult, but you have to begin, if you are going to take care of it. After all, who is more important to you?
Is now really the most convenient time to do an Estate Plan? For many people it seems to I, yes. Let’s talk about why:
Typically, it may take a bit to get together for our first meeting, since clients are often couples who have to compare their schedules and find time to come in to meet.
Right now, since we’re not meeting in person, we can do our first consult by telephone. If you are slightly more daring, we can always use Zoom, Facetime or other conferencing tools. But, that’s only if you want something other than telephone.
2. I Draft Your Estate Plan:
I will do your drafting, and maybe follow up with you for a few details. Whether we are in a social-distancing environment or not, this means I may email, call or text you with a question. AND RIGHT NOW, aren’t you spending more time with your family? So, where normally you may need a day or so to find a minute to talk and get back to me, these days, you may be right there with your family. It could not be more convenient, since you are seeing your family more hours per day.
3. You Sign Your Estate Plan:
Again, in the routine environment, we might have to coordinate your schedules so that you can get in to the firm office at the same time for a few minutes to sign documents. BUT FOR NOW WE CAN REMOTELY NOTARIZE AND WITNESS. This means we can get on Facetime or Zoom or other audio-video conferencing, and you can sign from home. Yes, you sign we witness the process via audio-video, and then we can sign later that we witnessed, and we can notarize your documents.
Is now really the most convenient time to do an Estate Plan? For a lot of people, I believe, yes it is.