Should You Have a "Ladybird Deed" ?

With all the competition for customers (from lawyers and non-lawyers alike) in the estate planning field, it is easy to see why the consuming public has the perception that an estate plan merely consists of a pre-printed form, or a set of forms, and that there is a “standard” method of planning.  And it seems like there is always some hot, new technique for estate planning being advocated, often by marketers.  It is nearly impossible these days to find an article, or attend a presentation on Estate Planning these days without hearing about the virtues of  the “Ladybird Deed,” and why everybody should have one.  It is common to have a client call or come in for an appointment, already convinced that they “need” a ladybird deed.

  it seems like there is always some hot, new technique for estate planning being advocated, often by marketers.

The reality is that these are actually somewhat complicated real property conveyancing tools.  And like all tools, I have often said over the course of my career that estate planning is not a “one-size-fits-all,” proposition.  And there is perhaps no better example of this than the “Ladybird Deed.”  The truth is that some people may benefit from the technique and many may find it a detriment.  In order to appreciate this, we need to discuss what a “Ladybird Deed” is and what it does.

Ladybird: What’s In a Name?

"Ladybird" is a name that caught on from use by a Florida attorney and lecturer whose favorite fictional spouse reference was “Ladybird,” in his examples.  The technically correct name is “Enhanced Life Estate Deed."

The reality is that these are actually somewhat complicated real property conveyancing tools.  And they are not a “one-size-fits-all,” proposition

Attorneys learn early in law school that property rights in the most of the U.S. can be divided up into different interests, and that the interests can be defined in different ways.  The sum total of all the rights held together, is known as the fee title.  It is not uncommon to see specific rights be divided (such as mineral, water and wind rights) and conveyed or reserved when the underlying land is conveyed.  It is also possible to convey rights that can be measured by the duration of ownership.  One such division and conveyance is the traditional “life estate.”  Like it sounds, a life estate is measure by the lifetime of the owner of the life estate.  Usually.

There is a very real temptation (often by persons unqualified to give estate planning advice) to indiscriminately use Ladybird Deeds

An Enhanced Life Estate reserves or conveys the traditional duration (life of the owner), but also adds an element (usually reserved by the transferor) to in effect, “change their mind,” and convey the fee title of the property away to someone else (or back to themselves).

Ladybird deeds can be very powerful, versatile, estate planning tools.  But like any tool, they can be misapplied.  Estate Planning is a process involving the careful application and combination of available tools.  There is a very real temptation (often by persons unqualified to give estate planning advice) to indiscriminately use Ladybird Deeds.  But the deed is just a tool, not a process!

Why Shouldn’t You Use a Ladybird Deed?

The danger in casual use of these deeds lies in viewing real estate conveyances as on-dimensional.  There are numerous related risks.

“Uncapping."

Michigan’s ad valorem real property tax scheme is based on complex valuation rules.  In the late 1990’s Michigan’s Constitution was amended to impose a “cap” on how much real property tax assessments could be increased.  This capped value is known as “Taxable Value,” and is subject to a cost of living – based formula, limiting increases.  Like so many laws, over time a series of exceptions and exemptions have emerged. Taxable Value, for example, may be “uncapped” when the property is conveyed (remember that there is a conveyance – or perhaps multiple conveyances – involved when a “Ladybird Deed” is created).  While there are certain exemptions to this “uncapping” rule when Estate Planning and Family transfers of residential real estate are involved, current Michigan law does not appear to apply such exemptions to the end conveyance accomplished by the Ladybird Deed.  So beware!

In order to track the changes of ownership (and therefore “uncapping” opportunities), Michigan has an affidavit filing process (MI Department of Treasury Form L4620 – Property Transfer Affidavit) with local assessors.  There is a relatively nominal fine for failure to file the affidavit and perhaps a temptation to ignore filing it.  One significant concern is that if the time period between the recording of the conveyance and the automatic conveyance by termination of the life estate is substantial, will this cause issues.  The affidavit should be filed, and one of the exemptions invoked, in my view.

Indiscriminate use of a Ladybird Deed may have unintended and undesirable results

Probate Avoidance.

Our modern society has evolved with the ability to structure “pay on death” direct beneficiary designations with nearly every type of asset people own today.  Michigan is one state where such transfer techniques are plentiful and easy to accomplish.  The Ladybird Deed, is such a technique.  It is relatively easy to create, and may well result in a probate--avoided transfer.  Again, indiscriminate application however, may create undesirable results.  This is particularly true where the intended recipients are multiple children.  “Joint” ownership of real property may create a whole set of unintended problems of its own.

Medicaid Planning.    

The so-called Elderlaw planning industry really thrust the use of the Ladybird Deeds into the forefront.  They have been a very powerful tool for Elderlaw planning.  But a lack of understanding of the tool and the process may well create unintended consequences.  The filing of a Medicaid Application is very timing specific.  Whether to convey property by Ladybird Deed, directly to a trust, by JTWROS designation, or not to convey at all, should be carefully considered by the planner, in light of all of the client’s circumstances.

What State are You In?

Not all States recognize Ladybird Deeds.  Since the real estate laws and rules vary by State to State it is wise to consult a knowledgeable specialist in the State where the property is.  Some States recognize a "pay on death," or "transfer on death" conveyance.

Ladybird Deeds are a powerful and often desirable planning tool.  My objection to them is when they are used in an unconsidered, “knee-jerk” one-size-fits all approach to the planning process as a whole.

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Should You have a “Ladybird” Deed?

Twenty-five years ago, I was covering for an astute, senior partner at my first law firm employment. I got a call from the title company questioning a deed he had drafted. His proposed form of conveyance purported to convey all but a "life estate," to her son, while retaining the right of the grantor to essentially change her mind and convey the property to someone else at any time during her lifetime. This seemed to go against everything I had learned in law school about vested life estates, fee interests, remainder interests and all sorts of "future" interests in real property. Knowing the drafter was an experienced real estate lawyer, I gave him the benefit of the doubt and did a little research.

Maybe; Maybe not

Michigan Land Title Standards (Std. 9.3), allows for precisely that type of conveyance. I have used it occasionally during my 30 year career, but up until recently, sparingly. While the deed has been around for many years in Michigan, it has only recently gained popular recognition, particularly as a Medicaid planning tool. However, it really is a more diverse and useful tool, and is becoming increasing popular with estate planners. So much so, that currently, one of several most often asked questions when clients call or come in for estate planning conferences is: "should I have one of those lady bird deeds?" My answer: "Maybe. Maybe not." J

The "ladybird" deed is not a one-size-fits-all" panacea for all of our real property estate planning challenges

The Estate Planning process often lends itself to automation, and generalities. In many cases this is unfortunate, as we really should be looking at each individual circumstance as unique and carefully tailoring our planning solutions to that unique situation. So while I am using "ladybird" deeds more often these days, it is actually making me think more carefully about this particular aspect of planning.

Urban legend is that the "ladybird" deed gained its name because Lyndon Johnson conveyed property to his wife using one. This writer finds it hard to believe that Lyndon was the first to use the technique. The technique involves a property concept known as a "power of appointment," and the concept was surely around before Lyndon was even a gleam in the elder Mr. Johnson's eye. But I am content to let legend be legend. One prominent Michigan Probate Judge has opined that it should really be more properly titled a "Deed subject to Life Estate," which is how it is characterized in the Title Standard. The "ladybird" deed is as close as we can get to a "beneficiary designation," on real property here (a number of states actually have statutorily recognized transfer on death deeds, but Michigan is not one of them). It can be used to effect a transfer-on-death conveyance of real property, either to other individuals, or to a trust. I can see some real utility there.

The Estate Planning process often lends itself to automation and generalities

But, whatever we ultimately call it, the "ladybird" deed is not a one-size-fits-all" panacea for all of our real property estate planning challenges. We still need to examine the goals of the client carefully. And not every consequence of the use of this deed is clear.

I recently wrote about the changes to Michigan's real property tax statute, regarding the "uncapping" of taxable value on the transfer of property. One of the advantages of the "ladybird" deed is that it is really not a transfer. The "transfer" occurs on the death of the grantor. And under the new law, a transfer of residential real property to a party related in the first degree, will not be "uncapped" as long as the transferee continues its residential use. But there are traps here, for the unwary. What if I want multiple children to benefit from the family cottage? Remember, the new law addresses a transfer to a person related in the first degree. It does not say to a trust, or other entity established by the transferor for the benefit of her children.  Indeed, the State Tax Commission has recently confirmed my suspicion that they view this exemption as not applicable to Trusts, LLC's, or to a distribution from Probate! (Bulletin 23, December 16, 2013).

Conveyance of property in Michigan requires that the parties file a "Property Transfer Affidavit" with the County Register of Deeds and the Tax Assessor when a "transfer" occurs. Is a "ladybird" deed a "transfer" requiring the filing of this form (L-4260)? Arguably not. But prudence suggests that filing—with an explanation—might be a good practice. More importantly, is there a Form L-4260 filing requirement upon the death of the grantor? I think there is room in the statutory language to conclude that the answer is yes. So, in our planning, we need to think about who will be responsible to ensure such a filing on a timely basis. Form L-4260 has a box to check for "transfer of that portion of a property subject to a life estate." But a conventional "life estate" is different in that both it, and the remainder interest are vested in their respective owners. There is in fact a transfer or conveyance of an interest in property. It is just an "exempt" transfer under the statute (until the Life Estate expires). Technically, there is not such a conveyance with the "ladybird" deed. Until there is judicial or administrative clarification, the proper approach to this will remain uncertain. My thinking is to be "redundant." Perhaps the best (albeit confusing and to me somewhat inconsistent) approach is to check both the "life estate" checkbox and the "other" checkbox, and insert language indicating that the deed was executed pursuant to Title Standard 9.3.

As use of the "ladybird" deed increases, there are bound to be questions by third parties about whether mortgage provisions (e.g., "due on sale clause") are triggered, as well as other restrictive deed items (P.A. 116 liens, conservation easements, etc.) will be affected. Use of this deed, like any other legal tool, requires thought about its application to the circumstances—both current and future. And the answer to the question is, as always: "Don't try this at home."

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Congress Finally Gives us Answers on Estate and Gift Tax

To quote former President Gerald Ford, with respect to the Federal Estate and Gift Tax: "our long, national nightmare is over." Late on January 1, Congress enacted "The American Taxpayer Relief Act of 2012." I won't go into great detail about the act (there is a lot about it we still don't actually know and will have to wait for the analysis of people more capable than I am), but will point out the highlights of the Estate and Gift Tax provisions which are of considerable importance to Estate Planning.

The Act preserves the $5 million per person ($10 million per married couple) "unified" estate and gift tax exemption and indexes it for inflation.

The Act preserves the 2012 levels of a $5 million per person exemption, maintains the "unified"estate and gift structure (meaning the $5 million threshold applied to total transfers, whether by gift during lifetime or inheritance on death), and indexes them for inflation. The Act also makes the concept of "portability," which was added in the 2010 extension for the first time, a permanent part of the tax structure. What "portability" means is that for married couples, the $5 million credit can be allocated or "shared" between them at any time, including after death. This effectively eliminates–in most cases–the need for those "clunky," inconvenient, "AB Trusts" ("his and hers"), and all the allocations and adjustments we were constantly making in those plans. This should have the effect of greatly simplifying the planning process in all but a few instances. The only real, substantive change in the law is a (modest?) increase in the rate (which will only apply after the $5/10 million credit has been used up).

What does "permanent" mean?

Most importantly, the Act makes the current Estate and Gift tax laws permanent. One of my colleagues asked me, what does "permanent" mean? I think that is a fair question. In 2000, the so-called "Bush Tax Cuts" were implemented and because of internal machinations in Congress, were built around a 10-year "sunset." This meant that unless Congress acted during the 10-year period, the laws would automatically expire on December 31, 2010. In a demonstration of the "brinksmanship" for which our modern Congress has become so famous for, in late December of 2010, they "extended" the law for 2 more years.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices.  I think that is a plus

But when they extended the general tax laws, they made unanticipated major changes to the Federal Estate and Gift tax. This was in every way a good change. But it was "temporary," because it was part of an extension, again due to expire recently on December 31, 2012. The new law does not have a "sunset" provision. This means that until Congress acts by legislation to change it, it is permanent. That is as "permanent" as any law gets these days.

My personal view, and what I have been able to glean from reading other sources, suggests that Congress has no appetite to make future major changes to this area, for a number of reasons. So, what we now have is some consistency and something on which we should be able to rely for the foreseeable future.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices. I think that is a plus.

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THE TOOLS OF ESTATE PLANNING; THE REVOCABLE LIVING TRUST

In prior months we have discussed a number of the “Tools” which comprise a well rounded Estate Plan. While I have opined that the Durable Power of Attorney is perhaps the all-important “hub” of a good plan, the Revocable Living Trust is–perhaps–equally important.

Often referred to as a “Will-substitute,” the Revocable Trust functions, like a Will, to distribute assets to heirs (known as “beneficiaries”) after death. However, it is the additional things that can be done with a Trust that make it “shine” in the Estate Planning arena. A Trust allows the maker (known as a “grantor”) to provide for ongoing management of assets and controlled distributions for beneficiaries who may be minors, incapacitated, or simply not ready for unfettered receipt of assets in the mind of the grantor. And, during the continued lifetime of the grantor, the Trust can be an important asset management tool in the event of the grantor’s own incapacity.

In most states, a Trust is not subject to the same “formalities of execution” that a Will must have. Trusts are generally governed by contract law (with some modification by modern state Trust Codes), which can allow for more flexibility in drafting for the wishes of the grantor.

The “magic” of the a Trust is that it is recognized as a “legal person” and therefore, “lives on” after the death of the Grantor. This means that there is essentially uninterrupted management and control of assets within the Trust and (usually) no need for court-supervised administration of the estate.

Like many legal concepts, there are some common misconceptions about Trusts:

Trusts do not save or avoid taxes. Trusts, themselves are simply tools. Avoidance or reduction of taxes requires active planning, and often involves the use of Trusts. Many times over my 25 years of practice, I have seen persons relying on the existence of a Trust as a tax savings, only to be rudely surprised after it was too late.

You don’t have to hire a third party Trustee. There often seems to be this vague notion that you must put all your assets in a box, take it down to the bank or brokerage, and entrust it to some third party who then tells you how and when you can use them. This is followed by a similar vague thought about the expense involved.

In reality, you may–and usually should (and the substantial majority of my clients do) be your own Trustee. Indeed, most of these Trusts are known as “Grantor-Revocable Trusts” (which has a technical tax meaning). Michigan’s Trust Code actually provides that the grantor of such a Trust remains and is treated as the owner of the Trust assets in all respects. There is no independent tax reporting or filing under a grantor-revocable Trust. Nor is there any duty to “account” (it just wouldn’t make sense to require you to account to yourself).

On the death or incapacity of the grantor, a successor trustee can be a family member or close personal friend or advisor. With married couples, we usually appoint spouses as co-trustees, with the surviving spouse continuing in that role. This doesn’t mean there is never a time when a third party Trustee might be advised. There are professional trustees who are well versed in trust and asset management and set up to fulfill the formal requirements of trust administration. Most often this arises after the grantor’s death.

You don’t have to have be a millionaire for a Trust to be advised. I would like to have $10 for every time in my career that I have heard a client (and sometimes a colleague) say the estate wasn’t large enough for the estate tax and therefore a trust wasn’t necessary. This misconception goes hand-in-hand with the notion that Trusts somehow eliminate or reduce taxes. The primary function of a Trust is orderly, managed, asset distribution without the need of Probate. Any client who owns a home, has life insurance and some other assets is at least a candidate for a Revocable Living Trust.

There are certain crucial steps in setting up an Effective Trust:

Trusts must be Funded! One critical error we see regarding Trusts is that they often fail to be funded. I like to describe a Trust as a box. The document itself is the box.

We can make a pretty nice box, with lots of proverbial bells and whistles. But by itself, it is still just a box–an empty box.

The trust will only cover assets that are titled in the trust, or are designated to automatically pay into the trust at some point (often on death). Other assets will still be subject to probate (or may, whether intended or not, pass directly to a beneficiary or joint owner).

Careful attention must be paid to each type of asset in this process. There are even some assets which in most circumstances, should probably not be put into a Trust (most notably, many retirement plan assets).

Regular Monitoring is Critical. Another factor contributing to the failure of Trusts in Estate Planning is the failure to periodically and consistently review the plan. This relates not just to the document itself, but to the process of funding. The one true constant in our lives is change. I am consistently impressed with how often clients change their asset mix. CD’s become due. Accounts are changed to “better” investments. Products are exchanged and rolled over. And banks seem to change names so often these days that often the paint isn’t even dry on the new signs between name changes. All these factors contribute to the crucial need to undertake periodic review. While I am hesitant to set a “rule of thumb,” if it has been more than two years between reviews, that is too long! The reality of the situation is that your own particular circumstances will dictate the frequency.

We recommend Revocable Living Trusts for the majority or our Estate Planning clients, not because it is a “favored product,” but because it truly fits the needs and goals of most clients in our experience. In upcoming posts, I will address some variations of Trust Agreements that may be recommended for clients with particular circumstances.

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The Tools Of Estate Planning - The Last Will and Testament

It is very common these days for third party advisors of every description (insurance advisors, accountants, church groups, foundation officers, brokers, etc.) to recommend a Will. Questions like “do you have a Will”; “have you updated your Will?” are frequently asked.

While I agree that a Will is an important fundamental “tool” in the Estate Planning tool bag, I take a more contrary view. Misconceptions about Wills are the most common of all misunderstandings in this arena. I continue to be impressed, in this “information age” at how much misinformation or just misunderstanding exists about Wills.

Lets consider some fundamental points about Wills:

● Wills do not avoid Probate! Indeed, a Will is simply as set of written instructions to the Probate Court (or more correctly, to the “executor”), on how the Probate Process should be handled.

Clients are often dumbfounded when they learn that even with the Will they spent so much time (and often money) to have done the estate still must be probated.

● Wills do not always do what you think they will do. A Will only governs assets which are subject to probate. Too often, over the years, I have had to explain to a client that, even though mom or dad’s Will clearly divides their asset equally among all the children, the division legally will not happen that way. While there are certainly circumstance in which this is intentionally done, it is often a matter of misunderstanding by the client making the Will about how the law works. Insurance policies pay to the designated beneficiary, usually without regard to the terms of the Will. Assets that are owned jointly with one or more other persons often go to the joint owner, outside of probate and again, without regard to the terms of the Will (this is often the case in a joint bank account, or an account which designates a “pay on death” or “transfer on death” beneficiary).

● You already have “a Will.” The Michigan Legislature (as has most states) has considered how the “typical” person would want their assets distributed. The Michigan Estates and Protected Individuals Code (EPIC) directs the distribution of assets of a person who died without a Will (a term or condition known as “intestacy”). My problem with that is that I have not met that “typical” person in my 25 years of helping clients with their Estate Planning. The statue simply makes some assumptions which are often not reflective of clients’ desires. Ironically, in other cases, clients go through a significant amount of angst and effort to create a Will that does not differ substantially from this statutory scheme (in other words, they spend time and money on a Will which really doesn’t accomplish much for them).

I am not saying a Will is a “bad” thing, or that you should not have one. We always recommend a Will as part of the overall Estate Plan. There are some very important functions of a Will:

● A Will gives you the opportunity to direct the Probate Process the way you want it to be done -- if there is a need for Probate for some reason.

● With a Will, you choose the executor (in Michigan, called a Personal Representative).

● A Will remains an effective way to nominate guardians for minor children.

● In situations where there is a taxable estate or income tax issues, the IRS (and state treasury) will look to the language in the Will for the handling and apportioning of taxes.

● There are special situations (e.g., in certain Medicaid circumstances) where using a Will and creating a “Testamentary Trust” may be preferred.

● A Will can be used as a “catch all” and a curative document to “repair” situations that do not occur as planned (for example, we recommend a “pour-over” Will whenever a client creates a revocable living trust).

In summary, while there are instances in which a Will is appropriate as the tool of disposition in an Estate Plan, there are commonly better methods and the Will becomes an important supporting and backup tool as part of the overall Plan.

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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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