- Written by Attorney Lisa H. Halbert
- Published: 15 March 2019
A friend of mine recently referred to estate planning attorneys as “professional pessimists.” As a self-described cheerful person, it stung a bit to be called a pessimist. But while the remark wasn’t personal, it was accurate. In fact, the more I thought about it, the more I realized that we estate planning attorneys would do well to consider our “pessimism” a vitally important part of our profession.
It’s true, we ask clients hard questions. We ask about illness, we ask about end-of-life, we ask about finances, family relationships, hopes, dreams, and expectations. Then, we work to plan for preferences and likely circumstances, while simultaneously trying to anticipate and plan for the unexpected.
A properly drafted Durable Power of Attorney document is one of the most important elements of estate planning. New clients often tell me they do not want Durable Powers of Attorney, because all their assets are jointly owned. While joint ownership of assets is sometimes desirable in estate planning, such designations do not replace the authority of a Durable Power of Attorney, which allows for transfers during lifetime.
Consider this common pattern: Two spouses are married and own their home. They want their estate plan to provide for the survivor between them, and then for their children. They also want to avoid spending their savings on end-of-life care. One spouse is older and ill, with the other spouse providing care for the first. They ask for Wills leaving all their assets to each other.
But I, now a Proud Professional Pessimist, must protect them by playing the “what if” game. What if the older spouse needs a nursing home? What if the younger spouse happens to die first? Without the proverbial “crystal ball” to tell us exactly what will happen and when, we run the risk that either or both spouses may require expensive (and potentially long-term) care in a nursing home setting, thereby jeopardizing assets they had hoped to leave behind for their children.
In a situation like this, the flexibility of the Durable Power of Attorney document is invaluable. The Agent named in a Durable Power of Attorney has the ability to transfer any and all assets, including the spousal home. Additionally, a properly drafted Durable Power of Attorney will allow the Agent to act quickly and in real time, as specific needs arise. Depending on each unique situation, this may mean transferring assets to or away from a spouse with a terminal illness, or in some cases transferring assets directly to children or loved ones.
These procedures are not appropriate for every situation, and naming an Agent to take charge of family assets requires very careful consideration. But when illness or infirmity strikes, and minds or bodies might no longer be capable, the Durable Power of Attorney document offers important protections.
The views expressed in this column represent general information. To address your particular and specific needs, consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.
Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits, as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.