Other than living wills and health care powers of attorneys I find most individuals are not well equipped to prepare their own wills, revocable trusts and financial powers of attorneys. But my view is undoubtedly jaded by the fact not a week goes by such that I have to tell someone that their documents do not adequately reflect their goals or needs or are otherwise majorly defective, often due to answering a question wrong and improper execution. In over twenty years of practice I have seen only two well done simple documents and those were by college graduates that had done a lot of research. A recent blog thread between estate planners sadly joked that we probably make more money off failed self-help documents then we do drafting simple wills. A well drafted will can last a lifetime and therefore the cost averages less than $2 a year, a couple of tanks of gas, or a few co-pay visits to the doctor’s office. Yes, you can plug your symptoms into Web MD to self-diagnosis your illness, but I don’t recommend relying on it and certainly not for your sole source of medical treatment or to perform your own surgery. Attorneys that focus their practices in estate planning and elder law literally spend thousands of hours over the course of their profession staying current with the nuances and changes in just this area of the law.
I have yet to see a software program that adequately screens individuals or explains the practical and legal implications of the multiple choices being offered to a lay person preparing their own will, trust or financial power of attorney. We’ve all seen those home improvement shows where do-it-yourself projects did not turn out so well. It is too late to fix a trust or power of attorney when you are actually incapacitated or a will if you are dead, so the risk d-i-y people take can be great.
And the elderly need to especially beware because financial abuse has been on the rise for the past two decades. Exploitation occurs through fraud, fear of being placed in a nursing home or left to manage on their own, theft and undue influence in the preparation of estate documents and the conveyance of real or personal property via deeds and documents of title. Private attorneys are one of the first and most effective lines of defense an individual has against family overreaching. Discussion on agents and surrogates and possible protective language and options are rarely included in the simple forms and standard online document you can create. An ABA study found that more than 90% of instances of abuse of general powers of attorney involved the agent transferring the principal’s assets – a house, car, cash and bank accounts into the agent’s name without the senior’s knowledge or consent. On an average that was 50% or more of the senior’s total assets. Abuse was far more common involving cases with “do-it-yourself” powers of attorney kits or forms. This might be because seniors without legal counsel are more likely to make mistakes of judgment and be unduly influenced. Additionally, the abuser wants to avoid legal oversight and therefore prepares the document online for the senior and encourages the vulnerable adult to act against his or her best interest without full understand of the risks involved. On top of legal training lawyers are governed by a code of ethics that require a duty of competence, loyalty and confidentiality to the client so when there is substantial risk of physical, financial or other harm to a client, a lawyer has authority to take reasonably necessary actions to notify and consult with public entities and other family members, and if necessary bring legal action to protect a client with diminished capacity.
And the elderly need to especially beware because financial abuse has been on the rise for the past two decades. Exploitation occurs through fraud, fear of being placed in a nursing home or left to manage on their own, theft and undue
influence in the preparation of estate documents and the conveyance of real or personal property via deeds and documents
of title. Private attorneys are one of the first and most effective lines of defense an individual has against family overreaching. Discussion on agents and surrogates and possible protective language and options are rarely included in the simple forms and standard online document you can create. An ABA study found that more than 90% of instances of abuse of
general powers of attorney involved the agent transferring the principal’s assets – a house, car, cash and bank accounts into
the agent’s name without the senior’s knowledge or consent. On an average that was 50% or more of the senior’s total
assets. Abuse was far more common involving cases with “do-it-yourself” powers of attorney kits or forms. This might
be because seniors without legal counsel are more likely to make mistakes of judgment and be unduly influenced. Additionally, the abuser wants to avoid legal oversight and therefore prepares the document online for the senior and encourages the vulnerable adult to act against his or her best interest without full understand of the risks involved. On top of legal
training lawyers are governed by a code of ethics that require a duty of competence, loyalty and confidentiality to the client
so when there is substantial risk of physical, financial or other harm to a client, a lawyer has authority to take reasonably
necessary actions to notify and consult with public entities and other family members, and if necessary bring legal action to
protect a client with diminished capacity.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.
