The Tools of Estate Planning - The Health Care Durable Power of Attorney

The Michigan Statute authorizing these specialized powers of attorney denominate them as “Healthcare Designations of Patient Advocate.” The previous blog addressed Durable Powers of Attorney, the rationale behind them and the common law and statutory law authorizing them. The Designation of Patient Advocate is a special form of a Durable Power of Attorney which restricts itself to medical and health care issues. For purposes of this blog, I will refer to them as Medical or Health Care Powers of Attorney.

The Medical Power of Attorney is often confused with another similar planning tool, the “Living Will Declaration.” The Living Will Declaration is a self-activating instruction to the Medical Community to take certain, often life-ending, actions. Unlike the Living Will Declaration, which is a direct instruction to the medical community, a Medical Power of Attorney appoints a person as your agent (just like a General Durable Power of Attorney), to act on your behalf in the process of making medical and health care decisions. These powers can range from daily care decisions to the ultimate end of life decision.

A well-drafted Medical Power of Attorney will not only specifically itemize the powers granted, but it will designate the person who has that authority. There is a specific itemized list of powers which may be granted by statute and it is wise drafting to include those statutory powers in the document.

The Medical Power of Attorney statute was passed by the Michigan Legislature in late 1990. Prior to that time, the status of the Power of Attorney in making healthcare decisions was questionable. Michigan had some very unclear statutory treatment of the meaning of “death” and how and when life could be terminated.

The medical and legal community alike embraced the advent of the Medical Power of Attorney Statute.

Unlike a general durable power of attorney, the Michigan Medical Power of Attorney statute requires the written determination by two medical professionals that the patient is unable to meaningfully participate in their own health care decision making process, before the agent is authorized to act.

In April of 2004, certain provisions in the Health Care Portability and Accountability Act (HIPAA) which critically effect these Medical Powers of Attorney became active. HIPAA, among (many) other things, provides that a Medical Provider cannot reveal “Protected Health Information” (PHI) to anyone without the prior, written authorization of the patient.

Obviously, when the patient is not competent, this is not possible. The HIPAA regulations provide for a delegation, in writing, by the patient (obviously prior to their becoming incompetent). It is critical that a Medical Power of Attorney contain HIPAA - compliant provisions.

Hospitals and Legislators offer a “fill-in-the-blank” form of Health Care Designation. In my view, while better than nothing, they leave much to be desired and do not cover with sufficient detail, the important provisions which should be in these documents.

The Medical Power of Attorney is one of the fundamental, important tools of estate planning.

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The Tools of Estate Planning - The Durable Power of Attorney

This is the first in a series of Blogs on Estate Planning Tools.  Estate Planning is a process.  The documents we lawyers prepare for clients are the “tools” used to ensure that the process works.  Some are basic tools that every client needs as part of their plan.  Some are more sophisticated and reflect the clients’ needs, desires, and special circumstances.

Everyone Should have a General Durable Power of Attorney

The General Durable Power of Attorney is one of the basic tools that should be in every estate plan.  This document, correctly drafted, will give the client the flexibility needed to respond to almost any variation in circumstances, whether specifically addressed in the estate plan or not.  The Power of Attorney will allow surrogate decision makers to act in your best interest and in furtherance of your estate plan, even when you cannot.

Stuff You Probably Didn’t Want to Know.  There are some fundamental components that must be included in a good Durable Power of Attorney document.  To well understand these components, it is useful to have a basic familiarity with the law which is the foundation of the Durable Power of Attorney.  As you read on, hopefully you will remember the adage, “do not shoot the messenger.”

My father the engineer was fond of saying that the best, most trouble-free, and lasting designs were based on simplicity.  Unfortunately, what could perhaps be the simplest of all estate planning concepts is necessarily complicated by the law which governs it.

Common Law vs. Statutory Law.  Since before the United States was settled, our ancestors have relied on something known as “Common Law.”  Common law developed based on a series of court decisions over many years, starting with English courts, and carrying over into most of the United States.

When the legislature (congress at the federal level) of a state thinks common law is insufficient to cover certain issues, or needs to be changed, it enacts written laws, known as “statutes.”  One of the quirks of statutory law is that when it changes or goes against traditional common law, our courts interpret it very narrowly.  Why am I telling you this?  What does this have to do with Estate Planning and Durable Powers of Attorney?

Agency Law.  The common law of Agency governs Durable Powers of Attorney.  They are very similar to an employment document (employment law is also originally based on Agency law).When you grant someone a Power of Attorney, they become your Agent (and you are known as the Principal).  Under the common law rules, Agency was automatically terminated when the Principal become incapacitated.

Obviously, as an Estate Planning tool, that type of instrument is of very limited usefulness.  Recognizing this limitation, the Michigan Legislature (as have the legislatures of every other state), enacted a statutory provision which allowed a Durable Power of Attorney to provide in its terms that it would continue to be effective, even in the event of the incapacity of the principal.  As noted above, this goes against (or is “in derogation of) traditional common law rules of Agency.  And because of the quirk of narrow interpretation noted above, this means that unless the Durable Power of Attorney specifically and precisely enumerates detailed powers granted to the Agent, the courts (and more importantly, third parties your agent may be dealing with) are likely to consider it useless.

Thus, our legal system requires us to take what could be a very simple document (what is more clear than “my Agent may do anything that I could do”?) and make it a necessarily long and complex document with many, detailed, enumerated powers.

If you have an existing Durable Power of Attorney that is only a page or two, it is likely not going to be as effective as it could or should be.

What Should Your Durable Power of Attorney Say?  A well written Durable Power of Attorney Document will have a number of detailed provisions generally dealing with the “business” of everyday life.  It will generally be necessary for the document to cover at least the following areas:

• Financial Powers, including power to deposit, withdraw from, open and close bank and brokerage accounts, vote stock, and make dividend elections.

• Power to pay and/incur debt, and to contract, negotiate, sue and defend.

• Power to engage in Real Estate transactions (this will require that the Power of Attorney be in recordable form, so it can be recorded in the county register of deeds office if necessary).

• Tax Powers, including the power to file tax returns and make tax elections.

• Powers to deal with Social Security, Medicare, Medicaid and other governmental agencies.

• Power to deal with Qualified Retirement Plans, Pensions, and IRA’s, including power to make elections.

• Powers to deal with Insurance and Annuities (including making elections and beneficiary changes).

• Power to make adjustments to existing Estate Planning Documents.

• Power to make or continue gifts.

• Personal powers like establishing residency, making funeral arrangements, and entering into personal care contracts.

The foregoing is by no means an exhaustive list, but is meant to illustrate the level of detail that is necessary in order for these documents to be useful as intended.

Who Should Your Agent Be?  Considering some of the powers enumerated above might cause you to ask whether you really want to give an Agent such broad and far-reaching powers.

The focus should not be on what the document says, but who we give the power to

.

The “tool” analogy really does work here.  If I want to build a house, I hire a skilled, experienced builder.  In the hands of an unskilled or careless person a sophisticated power tool with very sharp blades can cut off limbs and do serious injury in an instant.  In the hands of a skilled user who exercises common sense, that same tool makes the process better and easier.  And, as a matter of fact, in the hands of an unqualified person, a crude hand tool can still do plenty of damage.

The question you should be focusing on is whether the person being give any power is trustworthy, dependable, and capable of exercising good judgment.  If that is the case, I believe we want to give them the most capable tool to accomplish the assignment they have been given.

I am not saying, necessarily, that the person you appoint must be a lawyer, accountant, or financial person.  Those persons can be hired.  They need to be able to use good judgment and common sense in the process.  Indeed, in most cases, I believe a trusted family member is best solution for this.

When Should The Power Be Effective?  A Durable Power of Attorney may be immediately effective, or may be drafted to become effective only upon a finding of incapacity (sometimes referred to as a “Springing” power).  Clients sometimes express a concern over a power being immediately effective and believe that they would prefer the “springing” power.

While there is no “right or wrong” answer to this question, I have a bias toward the power being immediately effective.  My view is based on the same reasoning used in the “sharp power tool” analogy above.  If the person you have chosen is trustworthy and capable of good judgment, you shouldn’t need to worry about abuse of the power.  If they aren’t, you should be very seriously questioning appointing them under any circumstances.

My bias stems from a practical viewpoint.  If we make the power “springing,” it must be conditioned upon an event -- typically, “incapacity,” How is incapacity defined?  Who makes that determination?  How do we prove that to third parties?

In my view, by making the Durable Power of Attorney conditioned on an event, we set up “road blocks” to its practical usefulness.  We find ourselves having to figuratively “jump through hoops” to validate it.  It seems to me that such “roadblocks” defeat one of its most useful purposes: flexibility and ease of use by the Agent, when that use is most needed.

Of course, there will always be exceptional circumstances and none of the conditions are insurmountable.  It is possible to create a definition and designate a decision-maker.  But on balance, I would prefer the ease of use of an immediately effective document.

I believe the Durable Power of Attorney is the single most important Estate Planning Tool for most clients’ Estate Planning Need.  While others are equally advisable (as upcoming Blog entries will illustrate), if I could only choose one Estate Planning component, the Durable Power of Attorney would be the one.

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DIY Law

I have spent a lot of time thinking about how to best approach this subject.  No matter how I do, or what I say, it is likely to sound like a self-protection, “rant” by someone who is looking over his shoulder at the up-and-coming competition.

So let me start by saying that I am not in the least concerned about “competitors.” I have been blessed  with my share of loyal clients and valuable and respected relationships with trusted advisors who refer to me.  I am confident that by doing my best to focus on quality, personal service to my clients, I will continue to have sufficient work load.  My purpose here is to express the real concern that I have for the welfare of all the clients out there--whether mine or not.

In the past several years, I have acquired some new clients who have brought to me Business setups and Estate Planning documents which were acquired on one or more of the “legal.com” sites that seem to be ubiquitous lately.  These sites purport to provide a complete package of the documents clients need to create their own Will, or incorporate their business, at a fraction of the cost of using experienced professional advisors.  They universally disclaim any suggestion that they are lawyers or are giving any legal advice (though they are quick to note that they are set up by lawyers).

There’s the rub.  It is fallacy to think that the primary function of lawyers is to provide legal documents.  That great American President, Abraham Lincoln is famed for saying “a lawyer’s time and advice are his stock and trade.”  Documents are just paper.  Even lawyers use third party sources and form banks.  The real value we give to clients is our experience, analysis of their circumstances and needs -- in short, our advice.

Good lawyers do not charge clients for documents themselves.  What we charge for is our time and our counseling which comes from knowledge of the law, experience, continuing education in our specialties, and counseling and advice.  The problem with documents in and of themselves is that they are dangerous.  Unless they are knowledgeably applied to the particular needs and circumstances of the client, they can either create in the client a false sense of security, or alternatively create disastrous consequences.

I have visited some of these sites.  And I have seen a number of their products.  Some of them are nothing more than scams.  Others provide some pretty adequate packages of documents.

But that is not really the important question.  A much more important question than how to incorporate is whether incorporation is appropriate in the first place!  Most states offer multiple business form choices and the form that works well for one person may not be right for the next (even in identical businesses).  Determining a client’s goals and appropriate business enterprise setup can only be property done by a face-to-face, detailed discussion between counsel and client.

Two years ago, I took in, incidentally (by advising someone who was considering doing business with them), a new client who had a Limited Liability Company set up by a “dot.com” provider.  The documents were so hopelessly intermixed with corporation terminology that they were essentially untenable documents.  It probably cost this client more in fees to clean up the mess than it would have to have me do the job in the first place.

Last year, I had an new estate planning client come in with a D-I-Y Revocable Trust.  The clients had formed many ideas of how the trust concept worked that not only were incorrect, but were hopelessly intermingled with probate concepts.  The irony is that the primary function of the Revocable Trust Agreement is to avoid Probate!  The old saying, “the devil is in the details” is never more well illustrated that in the revocable trust context.  These sites do not explain to the client the importance of funding the trust (getting assets properly titled) as the basis for the trust to work at all.

Last week (prompting this writing), an Estate Planning client gave me information about a business entity she owned.  Curious, I did a quick on-line check at our state offices and discovered not only that the entity she thought she had was inactive, but the “dot.com” she hired to set it up had set up two other entities for her.  I cannot think of a reason why she needed the two other entities.  I do not know all the circumstances under which the two entities were set up, or what communications she had with the “dot.com.”  What I can say with certainty, though, is that she didn’t know and was conducting business under an entity name that probably did not do for her what she assumed it was.

If we are doing our job correctly, we can give clients significant “value-added” to the mere acquisition or preparation of legal documents.  Most lawyers today are willing to give prospective clients a reasonable amount of time (perhaps an hour) to discuss the process and document involved in their legal services, in the form of a free initial consultation.  Why not take advantage of that?  If you are not sure who to go see, you can get some help from my earlier article here, on how to choose and attorney.

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Estate Planning is a "Team" Activity

Good Estate Planning requires a “team” of professional advisors. The skills and knowledge required to properly assist clients becomes increasingly complex year by year.

Too often, I have been involved in, or observed, "planning" that was done in a one-dimensional manner. That is, an advisor has taken steps for the client, but with a myopic view. For example, if, an attorney advises or drafts Estate Planning documents, without appreciating the tax, financial or insurance consequences of such actions on behalf of a client, the end result can not only fail to accomplish the clients' goals, but may create more significant problems than they originally had.

There are too many variables involved in a proper Estate Plan for one professional advisor (or one discipline) to be expert on all of them. Estate Planning today involves knowledge of multiple areas including State and Federal laws regarding insurance, financial planning and reporting, challenging investment issues in periods of economic uncertainty, health, management and custodial issues, and changing rules regarding Probate and Trust administration. It is important for clients to align themselves not only with a good Estate Planning attorney, but with competent and talented financial advisors, and in the majority of cases good independent tax advisors. My own tendencies favor Certified Public Accountants (“CPA”), but I recognize that quality and competency in any professional field is ultimately more important that the little letters that follow the advisor’s name.

When a new client comes to my office for Estate Planning, part of the initial meeting involves learning about their other advisors. I want to be sure that those advisors are all on the same proverbial “page,” before we complete the Estate Plan.

It is equally important that the “team” be able to work together. Like a sports team, “chemistry” is an important factor. Egos must be put aside for the best interests of our clients. In my profession, particularly, we have that “never let them see you sweat” mentality. The law school experience (at least back in the early 1980's) emphasized the lawyers advocacy role and conditioned us to argue and advocate. But in the real world, we must advocate for the client in a non-confrontational manner, by using all available resources, including the expertise of the other professional advisors involved.

I don’t care who the team “leader” is. In my experience, that varies with the particular dynamics of the associations. Some clients expect me to be the leader. That’s fine. Other clients have come to me over the years on the recommendation of their CPA, Insurance or Financial Advisor. In many cases, those advisors continue to be the pivotal “player” on the team. That works for me. My view is that if we all focus on what is best for the client, the team will mesh and client goals will be met.

When contemplating an Estate Plan, a client should look to an Estate Planning advisor who works well with other professionals as a team to create the best Estate Planning environment, and thus, the best Estate Plan for them.

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How Do I Choose An Estate Planner?

There is no “Good Housekeeping Seal of Approval” or “UL” rating for Attorneys, Insurance and Financial advisors. And, to make matters more confusing, in Michigan, anybody can call themselves an “Estate Planner” with no formal training or credentials, whatsoever. This makes choosing a good planner a daunting task. One of my fears is that it is so daunting that it prevents people who really need to plan from seeking appropriate help.

“Free Seminars,” and Radio and Television commercials touting websites and services abound today. Too often, these are offered by practitioners who are not qualified. There is a substantial amount of misinformation out there. While some of these services may well be legitimate, sorting out the accurate from inaccurate information is the challenge.

I encourage clients to look for certain “credentials.” Not that credentials, by themselves, qualify a person to adequately advice about good Estate Planning, but it helps “winnow” out those who are clearly not qualified. And, credentials presuppose a certain amount of formal education, training, and sometimes experience in the discipline of Estate Planning. If a planner is an active member of their local Estate Planning Council (which is affiliated with the National Association of Estate Planning Councils), they will have to have one or more designated credentials related to Estate Planning. They are also likely to be up to date on current issues and techniques. I have found this to be a good starting source to find qualified individuals. Having a designation as a CLU, CFP or LUTC for life insurance and financial professionals generally means they have had a certain amount of training in the estate planning area. Advanced degrees (for lawyers and accountants) such as a Masters Degree in Taxation, or a Master of Laws in Taxation or Estate Planning are also a measure of qualification.

Experience is also important. Clients should “interview” a prospective advisor before engaging their services. Most of us are glad to talk to clients for a reasonable period of time at no charge, in order to discuss our qualifications, how we work and how we can help a client. Fair questions are: How long has the individual been engaged in Estate Planning? What percentage of his or her business involves Estate Planning? How many plans or Estate Planning clients does he or she serve each year? How often do they attend professional Continuing Education programs in Estate Planning to stay current (The Michigan Bar Association has a great continuing legal education program which offers a lot to lawyers to stay up to date. Some of us “older” attorneys are not required to have any continuing education -- but we should attend anyway)? Do they have representative clients who would be willing to serve as a reference (note that this may be difficult, because of client confidentiality concerns)? How much and how do they charge for their services? And it wouldn’t hurt to ask that Estate Planning Council member if they attend regularly.

In the end, it is important that you--the client--be ultimately comfortable with your advisor. It may be that he or she is imminently well-qualified in terms of knowledge, experience, and credentials. But if you cannot build a comfortable and trusting relationship, the experience will not be satisfying. I always advise clients to find advisors who they trust and feel comfortable with and stay with those advisors.

Thanks for reading

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How Do I Start?

When I started advising clients in the early 80's, talking to families of “average” means about trusts was unique, at least in my practice and community. There was a prevalent train of thought that trusts for the very wealthy, or at least only for clients who were concerned about estate and inheritance taxes. It was often felt that all trusts were unduly complex and always required professional administration. And this train of thought was, more often than not, fostered by professional advisors.

Today, it is more common for clients and advisors alike to hold a more “sophisticated” view of this process, having often read or heard about revocable living trusts, powers of attorney, and such, and their supposed virtues.

Whatever the preconceived ideas a client arrives with, they are too often influenced by misconception and often, misinformation. Having conducted a fair number of “informational seminars” over the years, I have often said to prospective clients that “I don’t really care how you get started, as long as you get started.” Of course, from a purely selfish point of view, I would like it if all clients started the process with me. But in reality, there is a certain amount of value to my suggestion to just start somewhere.

However, I am concerned about the proliferation of self-proclaimed “estate planners” out there. Like any worthwhile endeavor, to do something well involves doing the hard work to master the subject, usually combined with a degree of professional training, staying current, and experience. It is equally important that the Estate Planning Professional know the areas where s/he is qualified and those which should be referred to other more qualified (by training and experience) professionals. Unfortunately, there is no “UL” listing for “Estate Planners.” It is not a “regulated industry” (at least not in Michigan) and so you need not have any credentials to call yourself an “Estate planner.” It is also a multi-disciplinary “industry.” Lawyers, Accountants, Financial Planners, Life Insurance professionals, Trust Officers, and other similar professionals are involved in the Estate Planning process. Any one or more of them may serve as the coordinator of your planning.

I am also concerned about the easy availability of information (whether accurate or misinformation and whether or not properly interpreted), from the internet, the media, and in bookstores. I worry about the infomercial approach to estate planning. I’ll be the first to acknowledge that I make my living “selling” my services as an Estate Planning Attorney. While I do produce legal documents to be used in the estate plan, I do not sell forms, or a kit, or a “one-size-fits-all” approach. Rather, I sell my experience and expertise in counseling clients about the proper tools and techniques for their particular circumstances.

So how do I answer the question, “How do I start?” Somewhere - by all means, just start. But hopefully that means that you seek out a qualified professional for assistance. I’ll comment on how I believe you should find and determine just who is a “qualified professional” next time.

Thanks for reading . . .

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What is "Estate Planning"

Clients often think "estate planning" is either broader or narrower than it is. Estate planning is not financial planning (although financial planning is certainly a part of it). Nor does executing a Will complete the estate planning process. Indeed, the word "plan" is instructional. A good estate plan is a kind of "blueprint" for an overall plan for family issues, dealing with incapacity, succession planning (particularly where family businesses are involved) and distribution of assets upon death. Thought must be given to each possible event when putting together the plan.

Estate planners have often referred to their job as "what if" planning. It is our job to consider all of the "what ifs" that might occur -- questions like: What if an heir, or designated agent, executor or trustee dies prior to your death? What if you die and your children have not yet reached the age of majority? What if after you make the plan, you experience incapacity and circumstances or the laws change in a way that negatively impacts the plan?

A good estate plan consists of a number of tools which when combined properly allow your designated successor(s) to effectively and efficiently carry out your wishes. Wills, Trusts, Durable Powers of Attorney, Business Entities, Joint Ownership, Beneficiary Designations are all tools which, when properly known and understood can achieve a highly successful result. Conversely, just possessing one or more of the tools and using them incorrectly, can create worse problems than doing nothing might have.

Over the next months, I'll share some thoughts on the use of some of these tools, as well as current ideas, techniques, and pitfalls of estate planning.

Thanks for reading . . . . . . .

Andy

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