With Planning, Detours Are a Breeze

There may be detours on that road, there may be health events, there may be a financial crisis that comes up, but we know you can get past those hurdles with knowledge. That's why we're here.

Today’s topic is going to be about the most important estate planning document you will ever sign.

I don’t care who you are. I don’t care what the size of your estate is, whether you’ve got nothing or everything, rich or poor. I don’t care what religion you are. I don’t care what nationality you are. I don’t know anything about you, and yet I can make this one general comment.

We Are Not Talking About Wills

I bet everybody is thinking, “Uh…  Oh, they’re gonna talk about wills.”

Nope, that’s not it. We are not talking about wills.

The one thing that I can promise you is that you personally will never care whether or not you have a will. Before that will matters to anybody, you’ll be gone. It does not matter to you.

And while I use the term “estate planning”, we really prefer that you call it “life planning” because that’s what we like to do.

We Like to Plan for Your Life, Not for Your Death

Seasons of life bring all sorts of changes. We mature from a child into a young adult. We make dumb stupid mistakes that young adults make, and we learn from those. We raise families. We go into middle age a little wiser than we used to be.

As we travel into our golden retirement years, that’s also a season of life as well.

A lot of times, that senior season of life brings particular challenges. We can’t think about things the way we used to. Maybe we can’t physically get around the way we used to. Maybe we’re not as good of a driver, or we don’t drive at night anymore like we used to.

We need to deal with those challenges. One of the most important documents that can help you deal with the challenges of this senior season is a durable power of attorney.

The General Durable Power of Attorney

This is probably the most important document anybody will ever sign.

If I can no longer carry on my own business, somebody else is going to have to step in and do it. I’m still alive, but I’m incapable. Maybe I’ve had a stroke. Maybe I’ve got Alzheimer’s. Maybe I was in a car wreck.

Who knows of the million different things that could leave me in a position where I can’t handle my own affairs?

And yet, somebody still has to pay my bills. Somebody has to talk to my phone company. Somebody has to make sure my insurance is paying for my medical care.

It’s What They Don’t Say That Matters

With the powers of attorney, it’s not what they say that’s important. It’s what they don’t say that gets you into trouble.

You can start off by breaking them down into one of two parts:

  1.  Immediate power of attorney that takes effect instantly.
  2.  Springing power of attorney that springs into existence at some point in time in the future.

For example, I might have a power of attorney that says, “If at some point in time in the future, I can no longer handle my own business, then I appoint Lisa Shoalmire.” That would spring into action if I ever become incapacitated.

Or, I could have a power of attorney that says, “I appoint Lisa Shoalmire to handle business for me.” Now, even though I’m still capable of doing it myself, she has the power immediately.

Every time I mention those two, people seem to think, “Well, I like the idea of the springing one better.” It makes the principal or the person who’s signing that power of attorney feel a little more comfortable. Their agent has no legal authority until and unless the principal is incapacitated.

Let’s Walk it Down a Few Years

So, I sign this power of attorney that says, “If I become disabled, Lisa can handle stuff.” Lisa walks into my bank to write a check or to pull some money out to pay some bills for me.

They look at that power of attorney. They’ll say, “Lisa, we would love to let you handle John’s business, but this says you only have that power if he’s incapacitated. And we don’t know that he’s incapacitated. We’re going to need you to provide us some sort of proof.”

That can get difficult really fast. You've set up a barrier for that agent to take care of your business the way you intended.

The response I get back from talking to people about is: “Well, my child, I’m fine with them if I’m incapacitated taking of care of my business. But I’m just not comfortable with the idea that while I am capable, that there’s a document out there that designates them as someone who can do business on my behalf.”

I usually try to dig into that a little bit. The bottom line is, if you don’t have the faith and confidence and trust in an agent that you could name that could act for you immediately, then why in the world would you have the faith, confidence, and trust in that person if you become incapacitated and aren’t capable of looking over their shoulder?

It’s not about whether it’s an immediate power of attorney or springing power of attorney. It’s all about the trust and confidence that you have in the selected agent.

I’ve said the same thing to a million different people. If you’re concerned that the person you’re appointing might misuse that power, you’re appointing the wrong person.

Then There’s Just No Question About it

For most people, immediate power of attorney is actually the better option.

Now we get into what powers we are giving them. This is where I would say our state legislators have done us a disservice.

We’ve got a bunch of folks that head to Austin or Little Rock, and they make laws about what a power of attorney is. This power of attorney is called a statutory power of attorney because it’s in the statute.


And Once You Pass ’Em, They’re Hard to Change

Anybody can grab a law book and open it up. There’s an example of a power of attorney right there in the statute books.
They’re trying to give people tools.

The idea was they wanna make it easily accessible for people to have a power of attorney, where they can get it pretty easy.
And so if you were to get on the Internet and you typed in “Texas power of attorney” or “Arkansas power of attorney”, or if you’ve got a hold of a law book, or even if you went down to legal aid or something and asked them for a power of attorney, most often, you’re gonna end up with the statutory form that the legislators came up with.

It’s very short, about a page, a page-and-a-half long. And the problem is, it’s just not comprehensive enough.

The thing about laws is that they’re hard to pass. And, once you pass them, they’re hard to change.

Anybody That Gives You One Doesn’t Know What They’re Talking About

Life, however, changes every second. Does it say anything about the retrieval of an email password? Establishing online banking? Any of the myriad of things that you’re able to do?

You need your agent to be able to handle those things. That statutory power of attorney just doesn’t get there.

Taking everything that you could do as an adult American free person, and now putting that in writing is not a simple document.

So when people say, “I need one of those simple little powers of attorney,” there's no such thing. Anybody that gives you one doesn’t know what they’re talking about.

This is a complex document because the devil is in the details. There are some very concrete examples of how those details can negatively affect you if they’re not worded right and you don’t know what that power of attorney says.

Provisions That Can Be in There That Can Have a Big Impact on You and Your Assets

It’s much more important to you than a will or something like that.

This is the thing that’s going to make sure you are being taken care of and that your assets are being managed while you're still alive. 
This is your key to maintaining quality of life so that somebody can be there to help manage those things.

People will say, “John, is this power of attorney legal?”

“Well, yeah. But that’s not the right question. The right question is, is it any good?"

And those are two different questions. Something can be legal, but that doesn’t mean it’s very good.

We want a good power of attorney. That’s where it comes into really fleshing out the different things like:

  • Banking
  • Real estate 
  • Personal property
  • Oil and gas
  • Investments
  • Stocks and bonds 
  • Securities
  • Dealing with government agencies
  • Health insurance
  • Email
  • Electronic banking
  • Everything else you can possibly think of 

Remember, it’s not what the power of attorney says that gets you in trouble. It’s what it doesn’t say.


An Agent Cannot Gift

In a simple or statutory power of attorney, many of those documents are just silent when it comes to the power of your agent to gift your assets.

Now think about what you can do yourself. Could you make a gift to a child or a grandchild or to your church or a charity of your choice?
Of course, you can.

This is a power that we would like to include in a power of attorney so that your agent can continue to gift in a manner that you normally would gift.

Also, there are some issues when it comes to arranging assets appropriately for long-term care. Sometimes gifting is necessary for Medicaid planning or VA benefits.

If your document is silent about gifting, the default is that your agent cannot make a gift.

I Can’t Protect the House

One of our previous programs talked about a Lady Bird Deed. This is a way that should you ever need nursing home care, you can protect that home so that when you die, that home doesn’t get eaten up by the Medicaid Estate Recovery Program. In other words, it doesn’t have to go back to the state to reimburse them for all of that care they provided.

That Lady Bird Deed is a great tool, it’s a fantastic tool, and we use them pretty often. But, often when we’re doing that, the person who owns that home is the person who’s in the nursing home. And if they’re in the nursing home, many times, it’s because they cannot handle their own business. 

If I don’t have the ability to make a gift, I can’t do a Lady Bird Deed. I can’t protect the house.

When she dies, she may have always wanted that house to go to me. But it doesn’t happen because the paperwork was not correct when it was done.

Again, this is one of those situations where it’s not necessarily what the power of attorney says that gets you in trouble, it’s what it doesn’t say.


What You Want Is a Simple Life

You don’t want simple documents. What you want is a simple life. You want the documents to be however complicated they need to be to make sure that happens.

If you have more questions, you can always reach out to us every Saturday on 107.1 (Texarkana, TX) during our live call-in radio show, that’s Aging Insight Radio. Or watch us on the live Facebook feed if you live outside of our area.

Of course, you can pick up one of the Aging Insight Magazines that are out there in the community or online. They’ve got lots of good information in there.

And lastly, keep watching us on our YouTube channel where we try to tackle every elder question you throw at us.
I hope today that you’ve now learned that the most important estate planning document doesn’t have anything to do with a will or a trust.
It’s a general durable power of attorney.

And if you have one, get it out and check over it, and see if you see some of the things we were just talking about in that document.
We look forward to hearing from you in the comments section of this article. Please make sure to also like and share it with your loved ones.


The content in this article was taken in large part from our original broadcast of The Single Most Important Estate Planning Document You’ll Ever Sign.

Ben King
Ben King helps clients in TX and AR with estate planning, asset protection, probate, and medicaid planning.
Be the first to comment!
Post a Comment