Consider
personality traits and skills when selecting your future legal representatives
by Amanda Singleton, AARP, March 10, 2021
En español | The
older we become, the more likely it is that we will need some help with our
day-to-day life and finances. Most family caregivers are tasked with some
degree of medical and financial coordination for their care
partners. It's important to consider who your caregivers will be and give them
the authority to help you with these tasks without having to go to court to get
it. The way to do this is by appointing your legal representatives in estate
planning documents.
As an attorney, I walk clients through planning consultations
every day. We spend a lot of time deliberating who should be appointed to serve
in important roles like health care surrogates, power of attorney agents, executors and
trustees, and flesh out those duties in a well-rounded estate plan. Each of
these roles is a type of caregiving. And while I can offer suggestions and help
guide the deliberations, the final decision is always up to the client.
The decision process is not to be taken lightly. The caregivers
you name in your estate planning documents may someday have control over the
medical care you receive, your assets and property, and even where you live and
how you spend your days.
Without valid legal documents, you will be leaving the decision
up to your state's proxy, guardianship or conservatorship laws. And the representatives who may be appointed by a court may
not be whom you would want. Naming your representatives while you are of sound
mind will prevent that undesirable result and gives you control over your
affairs — even when you can't speak for yourself. These tips will help you with
the decision-making process to determine who the right representatives are to
best serve your interests in life and beyond.
How far ahead
you should plan?
Even if you're young and healthy today, plan like you'll need
caregiving tomorrow. Tragedy does not discriminate, and the unexpected may
happen. While that's a scary thought to many, this can also be a helpful
thought when making your legal documents. Here's why: When you're selecting
your future representatives, you don't need to think about who it should be in
five, 10 or 20 years. My clients say things like, “My brother is a good choice
today, but he'll be too old in 10 years to caregive for someone else.” My
response is always, “If he's a good choice today, then you have your answer.
Ten years is a long way away.”
So, choose your representatives based on current circumstances,
not what you think will happen down the road. Your documents can — and should —
be updated as life goes on.
Types of
representatives
Your estate plan may include the following
roles. Terminology and qualifying factors vary by state, so consult with an
attorney in your state of residence with any questions about these roles and
the right estate planning documents for you.
Health care
proxy/surrogate
Your health care proxy (or surrogate) can obtain your
information from your medical providers and make medical decisions for you if
you are unable.
This person is most likely to be your hands-on family caregiver.
He or she will be by your side in the hospital, talk to your doctors, and
consent to or decline treatments for you. This may include life-or-death
decisions. Your health care representative needs to be your biggest advocate; he or she must act in
your best interests, not their own. He may be asked to share information and
communicate with your other loved ones who want details about your care. This
is usually where family conflicts arise: Your surrogate
will run interference and may need to deal with unsolicited opinions and
disagreements.
A balance of empathy and toughness is required for this job. As
a caregiver, I've had to be a super-squeaky wheel to get a doctor's attention ("We're not
leaving until the oncologist gives us more than five minutes of his time and answers
all our questions!"). I've had to tell family members to butt out when
they questioned our selected course of care ("Yes, we are bringing hospice
in to help with pain management! No, it doesn't mean we're giving up and
letting Mom die!"). I leaned on the old adage that you can't please
everyone all the time, and my goal was to get my care recipient the best darn
care and the least amount of family stress possible.
Your surrogate also must be capable of jumping headfirst into
the caregiving role. If the person lives out of state, will he or she be able
to travel to you, if needed? If the surrogate has their own physical or mental
disabilities, will it be possible to hire professionals to help her with the
caregiving tasks she can't manage? Will the surrogate or proxy struggle to meet
the demands of intensive caregiving? Above all, remember that help can be hired
and your surrogate can act remotely if necessary. The most important thing is
that your surrogate is ready, willing and able to serve.
Attorney-in-fact
Your attorney-in-fact (also called your agent) is given power
through a power of attorney. He or she can act for you only while you are alive
and have the authority to make decisions on your behalf for your financial and
legal affairs. The agent may be permitted to act for you even though you are
still mentally sound or may only be permitted to start acting for you once it's
proven that you're incapacitated.
When your agent starts the role depends on the type of power of
attorney you make. The authority may be limited to certain tasks or could be
totally inclusive of anything you would do for yourself.
It's fair to say that your agent has a tremendous amount of
power. Because of this, the law holds your agent to a “fiduciary standard” —
meaning if he or she is not acting in your best interests, he can be held
civilly or criminally liable. That means the agent can be sued or even be
charged with a crime for not handling your affairs appropriately.
Dependability and the desire to learn and seek help when needed
are traits of an effective agent. Your agent should be well-organized and
be able to keep good records. This is important
because the agent may have authority to spend your money or make changes to
your financial planning. Good recordkeeping protects you and keeps him from
getting in trouble with the law.
Your agent must understand the scope of what the power of
attorney authorizes him to do, and not do anything that the power of attorney
doesn't allow. Most importantly, your agent needs to discern when he or she
should consult professionals, like accountants or certified financial planners,
for guidance. Your agent doesn't need to go it alone. We encourage anyone who
is starting to provide care and use a power of attorney to reach out to
professionals to help carry out the duties as successfully as possible.
Executor and
trustee
Your executor is in charge of administering your estate after you die. This means he or
she will have to take an inventory of your estate assets, retain an attorney,
pay your creditors, prepare your final taxes, and distribute assets to your
beneficiaries.
Depending on the type of trust you set up, your trustee may be
able to act on your behalf when you're alive or after your death (or both). The
trustee will have the power to control your assets according to terms and conditions
you set up in your trust.
For both of these roles, look for someone who is good with
money. Persistence and efficiency are also positive traits. Like your agent,
the executor and trustee are held to a fiduciary standard. The courts don't
look kindly on lazy fiduciaries. So, if the executor is not handling affairs or
progressing a probate case forward, the judge is going to ask for an
explanation. And if a trustee is not following the terms of the trust, the
trust beneficiaries are going to start demanding answers.
That's not to say that your executor or trustee needs an MBA to
serve. Remember, he or she will have attorneys and advisers guiding them. The
most important thing is that your executor and trustee are dependable,
trustworthy and will rise to the occasion.
Considering
your options
You do not need to appoint the same person to manage your health
care and money. One of your children may be efficient and a whiz at accounting.
The other may have a nursing background and be an excellent communicator. In
that case, wouldn't it make the most sense to put one in charge of your medical
needs and the other in charge of financial management?
And you do not need to appoint a family member at all. Recently,
I was doing some spring cleaning in my files and found a relative's old estate
planning documents. She had named me as her health care surrogate and executor
in her will. I remembered that she had done that, but had forgotten that she
didn't name her next closest relative to serve in any role if she became sick
or passed away. Instead, she named a friend. It made sense; the friend had a
medical background and my relative had cared for the friend through cancer in
prior years. The friend had the life story and perseverance to be a top-notch
caregiver. Like in my relative's documents, if you have a friend who is
qualified and willing to do the work, then name your friend.
Sometimes, people ask what to do if they have no good choices in
their friend or family circles, or no friend and family circles at all.
Selecting a neutral professional is a solid alternative. You can name caregiver
advocates, attorneys or accountants, financial institutions or trust
organizations to serve in these roles. The benefit here is that these
businesses will serve in a fiduciary role with a high degree of professionalism
and competence. While this may cost more money, it ensures that your interests
are protected and wishes followed. And it can prevent family drama and possible
litigation in more contentious families.
Don't worry about
hurt feelings
My clients often say, “Can't I just name both my children to be
power of attorney (or executor, or surrogate, or trustee)? I don't want to hurt
anyone's feelings.”
My answer is this: While the law may allow you to name
co-representatives in your legal documents, you may not be happy with the
practical result. If your co-representatives can't agree or don't work well
together, you can expect lawsuits, court battles and fractured families.
Meanwhile, you are not receiving the best caregiving you deserve. If you don't
think the co-representatives will be able to work together, then name a primary
and an alternate if the primary can't do the job. If you do decide to name
co-representatives, you may not want to name more than two co-representatives
at a time. While it can be nice to have odd numbers to help with tiebreakers,
too many cooks in the kitchen almost always spoil the soup.
The best way to prevent hurt feelings is to talk to your loved
ones. This can be in person or in a letter of instruction. Tell your family
what you want if you need caregiving in the future. Tell them who is in charge
and why. If it's not a surprise in the middle of a family crisis, your care
will go more smoothly and your loved ones are more likely to work together and
not give your legal representatives a hard time.
Leave a road
map
Don't shy away from talking about how you want to live if you
lose the ability to be completely independent. Talk it through with your
possible caregivers and representatives. The roles you are assigning them come
with great responsibility. A transparent conversation or instructions about
your finances and wishes will be their road map and ease their caregiver
stress. What you share with them today makes their lives — and yours — easier
tomorrow and provides peace of mind for all involved.
Amanda Singleton is a recipient of
CareGiving.com's national Caregiving Visionary Award and serves caregivers
across their life span through her law practice. Follow her on Twitter and Facebook.
No comments:
Post a Comment