May we have your thoughts please about using Do-It-Yourself Legal Documents that we can download from the internet?
Answer: Legal documents that ostensibly seem easy to prepare and execute are often subject to specific and subtle nuances that only an experienced practitioner will be familiar with.
A good portion of our practice is comprised of meeting with new clients, collecting their pertinent information, and coming up with a strategy that incorporates both estate and/or elder law planning that meets their specific needs. We typically ask to review a client’s prior estate/elder law documents during the consultation if, in fact, any planning had been done previously. All too often we come across documents that were prepared by individuals without the expertise of an attorney, and the results are frequently quite similar. These individually-prepared documents are usually lacking the protection that is required, and can unfortunately lead to dire consequences.
Case Study: Health Care Proxy
Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make these decisions. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration, either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place.
Second, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again, this requires the help of someone with experience.
Finally, the document must be witnessed by two individuals in order for its validity to be recognized. A person should not have his agent, spouse or child be a witness to the signing.
Case Study: Power of Attorney
We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. First, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.
The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Furthermore, any additional powers beyond those enumerated in the statute must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, an individual should not cut corners by downloading a form from the internet, as this may result in a power of attorney that is not considered “statutory” and would therefore not be required to be legally recognized.
The power of attorney is an extremely important tool for an estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.
Case Study: Last Will and Testament
A last will and testament is yet another document that must be prepared under the supervision of an experienced attorney. After the person who executed the will (the “decedent”) dies, the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest, can result in unnecessary delays, costly legal fees, and worse, an inability to complete the probate process.
The examples described above provide a small illustration of how self-drafted documents, perhaps initially done to minimize costs, can result in poor planning and the ultimate outlay of unnecessary legal fees to correct the damage that was done. It makes far more sense to do it right the first time.
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Ronald Fatoullah & Associates
Great Neck, New York
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