A Legal Perspective on Family Squabbles and Sticky Fingers
By Barbara Peters Smith, Herald-Tribune / Thursday, January 24, 2013
If you want to have your wishes followed before and after the end of your life, it really helps to have the right legal documents prepared. But it's even more important to have the right conversations, over and over, with the right people.
Unfortunately, because few of us really enjoy chatting with our nearest and dearest about how we might become incapacitated or die someday, elder law attorney Edwin M. Boyer said, "we see a lot of crisis situations where people have not planned."
Boyer, a Sarasota lawyer since 1978 and current president of the National Academy of Elder Law Attorneys, was speaking to a packed room during a recent information session presented by Aging in Paradise at the Longboat Island Chapel.
"If you don't make a choice" about what ultimately happens regarding your medical care and your money, Boyer emphasized, "the law makes a choice for you. You need to plan and call the shots right now. It helps resolve family power struggles ahead of time."
Boyer said even those who have completed the three key documents -- advance health care directives, power of attorney and last will and testament -- should revisit their decisions and have ongoing conversations with the people they have chosen to make decisions if they can't.
For one thing, there have been changes in the law. For example, recent federal legislation puts the estate tax ceiling at $5 million, or $10 million for a married couple, so "not everybody needs a living trust anymore," Boyer said. "With a lot of our clients, we help them simplify their plans because they don't need all that complex stuff anymore."
Another reason to take a second look a documents executed long ago, Boyer said, is because end-of-life decisions "are fluid. Your values change. These documents are you at a particular period of time. Maybe your choices are different when you're facing a terminal illness."
Personal relationships change over time as well, and Boyer advised against giving someone unlimited power of attorney without choosing that person carefully -- "Don't pick someone with sticky fingers!" -- and making sure you have backups.
"It's a really dangerous document," he said of the form for naming a durable power of attorney. "Once you sign it, it's effective and valid. And some family members think they have a document that allows them to get their inheritance ahead of time."
When choosing a health care surrogate -- someone to make decisions about your medical care if you are incapacitated -- Boyer said the necessary traits are "commitment, common sense and a knowledge of the patient's wishes. That last one is the most important. The best thing is that constant dialog with the people who are going to be making decisions for you."
It is also possible to designate someone to act as your legal guardian if you ever need it, Boyer said, but power of attorney and advance directive documents should make this step unnecessary.
"Guardianship is a last resort," he said. "It's expensive to do, and it takes away somebody's rights. People can avoid that with a $150 power of attorney."
Boyer got smiles from his audience, most of whom were well past 65, when he mentioned a new necessary aspect of the elder law business: "fear and respect for the baby boomers."
With the oldest baby boomers turning 65, Boyer said, by the time they come to his office to draw up legal documents they have already done their Internet research and know what they want.
"They're different," he said. "The baby boomers tell me what they're looking for. They're not going to sit back quietly; they're going to demand the things they want in retirement."