Best way to designate who will handle an individual's affairs?

February 6, 2013 6:48 PM

I'm looking for the best way to get a document drafted that will allow an unmarried woman with three children designate that only two of her children will have the ability to handle her affairs should she pass on or become incapacitated. (NY State specific)

My husband and I know a woman who is looking to get a document drafted that would explicitly give only two of her children the ability to handle her affairs should she pass on or otherwise become unable to handle them herself.

The woman in this equation doesn't have much money, so we want to explore what options are out there before she goes lawyer-shopping. Is this something she can do on her own and just have the document notarized? What would be the best way to make a document like this binding without dropping a ton of cash? Are those "build-your-own-will" packages on legalzoom and such binding documents?

She is of sound mind and body, but is getting up there in age and wants to make sure her affairs are in order. Thanks in advance!

posted by Verdandi to law & government (9 answers total)

Which part of New York? There are various legal services for the elderly, but they tend to be regional (Western New York, New York City, Queens, etc.).

This is more complicated than it seems; for example, if she wants to specify certain persons to be in charge of her affairs in case she is incapacitated by dementia (or similar) but otherwise healthy, or to be in charge of decision-making in the event that health care providers need to make life and death decisions when she is too ill to make them herself, that requires different documents than those related to her estate after her death.

See if there are free or discounted legal services for seniors in her area (senior centers and libraries are a good place to look for information about such resources, in addition to online searches).

The resources on sites like legalzoom may not be her best option for actual drafting of documents, but what they certainly can do is help her think through what documents she needs to accomplish her goals, so that her time working with a lawyer will be most effective. Another good resource (though it has the word shit in its title is Get Your Shit Together, which attempts to have guides for all sorts of end of life stuff in one place, in an easy to understand layout.
posted by ocherdraco at 7:11 PM on February 6 [1 favorite]

It would be foolish to handle this significant and potentially complex matter by doing anything other than working with an attorney with significant experience in estates, powers of attorney, living wills, etc. A New York bar association (I'd start with one local to her city or county and then try NYSBA) might be able to connect her with an experienced attorney willing to provide free or low-cost legal services or connect her with another organization that coordinates pro bono legal services relevant to her needs.

One thing to keep in mind is that she is not balancing the costs (if any) of seeking reliable legal advice against the costs of Legalzoom etc.; she is balancing those costs (if any) against, among other things, the costs of even a relatively small estate being tied up in litigation or (worse yet) the unfit child being able to exercise influence in this arena.
posted by Inspector.Gadget at 7:18 PM on February 6 [3 favorites]

As Inspector Gadget points out, she needs more than a will. If she is just incapacitated she needs a healthcare proxy/power of attorney. I'm a big proponent of do-it-yourselfing (I've done several less crucial legal documents using internet templates in the past), but for stuff this important, I really don't think it would be wise.
posted by treehorn+bunny at 8:00 PM on February 6

If you're just doing research before sitting down with a lawyer, there are at least two or three (depending on what she wants) different documents for her to research.

An Advance Directive/Living Will specifically spells out what sort of medical care choices she would like, such as not being on a ventilator for more that 1 week, no CPR if she codes, etc. That document can name someone to make decisions on her behalf if it is not otherwise covered in what she spelled out.

A Power of Attorney document gives power to someone else (one or two of the kids, but having two on there means both must agree before the action can be taken...usually. That's where you need a lawyer's help) to make financial decisions (pay bills, sell a car/house/etc) if she is incapacitated, or to make all of her medical and legal decisions if she is incapacitated. You can have a Power of Attorney that names someone who makes all of your medical decisions without having an Advance Directive specific document, but if you don't tell that person what your wishes are people can argue the decisions and cause all sorts of drama. Something to keep in mind. Also, the person you are giving Power of Attorney to usually has to agree and sign the document that states they are willing to take on this role when the time comes, so it can't be done as a "surprise" to those people.

A Last Will and Testament not only describes what pieces of your estate you want to go to certain people, but also names an Executor of that estate. The Executor is tasked with the job of carrying out what your will says, along with settling any bills and taxes of the estate. So she can use a Will to name the two kids as executors, but she needs to spell out in writing (and quite clearly) what she wants each of the kids to have (especially if she's wanting to leave someone out). That's also where the lawyer can help make sure the language is airtight and unlikely to be reversed in court if someone challenges it.

New York may call these documents by slightly different names but the descriptions are usually consistent between states. It's fine to do research and read about the different options, but TRUST ME...you need a lawyer to make sure it's all done correctly. Especially if there's a chance one of the kids could challenge things. TRUST. ME. Been there, done that with a Power of Attorney and a Will when my ex husband had to deal with his father having brain surgery and his grandmother having a stroke. In the same week. With an asshole brother arguing and being an asshole. So yeah....trust me.
posted by MultiFaceted at 8:08 PM on February 6

Wanted to add...at least in the state where my experience was, a Power of Attorney that says "Jim AND Joe are hereby named..." means that both Jim and Joe must agree on the decision before it can be enacted. A document that says "Jim OR Joe" means that Jim can make all kinds of decisions and Joe can't do anything about it, except make his own decisions without telling Jim, and then all of a sudden you have a legal shitshow on your hands. That's the importance of talking it all through with a lawyer. Subtle choices in grammar can have a huge impact on the legal meaning of the document.

(also, Power of Attorney can be the same as a Healthcare Proxy in some states...each state may have slightly different wording, but it does the same thing).
posted by MultiFaceted at 8:15 PM on February 6

One wrinkle a lot of people miss is the difference between a Power of Attorney and a Springing Power of Attorney. The first immediately grants the person all the powers designated in the document, the second only comes into play after an event such as incapacitation.

Another aspect of estate planning is actually avoiding probate entirely for certain assets. For example, a house or car may be placed into joint ownership, meaning that there is no need to wait for the will and the powers of the executor. Also, assets such as life insurance policies and pensions have beneficiary designations that similarly place those assets into the hands of the named person immediately. In such a way the elder can control what happens to her assets above and beyond what a will states, and without the intervention of the courts or any of the turmoil of estate settlement.
posted by dhartung at 2:10 AM on February 7

We should also point out that all the documents listed above have a space to list people that you designate to take those roles; they don't usually list people who you specifially DON'T WANT to take those roles, though it's possible that a lawyer can add that in. But just because it is LEGALLY specified in one way doesn't mean that the left-out kid won't TRY to make it his business and cause all kinds of arguments and anxiety for the other two kids.

The other two kids will need to be aware of this and decide whether they will stand firm against any shouting/violence, or if they will try to work with the third kid and allow some meetings/discussions with the third kid before the first two make the decision official, or whatever other way they want to handle this. The third kid won't have any legal rights, but the relationships in families might allow for all kinds of ugliness to take place.

IANAL; TINLA
posted by CathyG at 8:03 AM on February 7

IANAL, so this isn't legal advice, just a warning based on experience...

(tl;dr: the bodies this woman's substitute decision makers will be giving instructions to on her behalf need clarity above all else when this woman can no longer speak for herself. Get a qualified lawyer, Push for one decision maker rather than two, and make sure the children understand why it's being done this way)

I'm telling you from bitter experience...if there is one thing in your life it's worth paying top dollar for, it is end-of-life planning. If this woman loves her children, doing this right is one of the kindest things she will ever do for them.

I beseech (yes, beseech) you/her family to spend the money on a qualified lawyer to draft proper wills and Powers of Attorney. They know what questions to ask the family to make sure this woman's wishes are clearly and properly represented in the documents. And I'm not even talking about a lawyer friend who will do it cheaply. Find someone who specializes in Wills and Estates. One ambiguous word in my Mother's will (drafted by a family friend in haste) has created serious tension in my relationship with a fellow inheritor. One word.

You can't see it now, but when family members approach the end of life, it draws all kinds of unexpected family tensions to the surface for them and for their children. People start equating inheritance and decisions about care with how much their parents loved them. And it can happen over the smallest matters.

I should state my bias clearly here: My grandparents planned how things would be handled at the end of their lives for decades, and their end-of-life and death still resulted in a protracted legal battle, and my grandmother persisting for three months in a vegetative state due to indecision and conflict among their children. Yes, this is a worst case scenario, but I've seen many instances of family conflict on much lesser scales that are best avoided.

When it comes to medical and financial Powers of Attorney, these documents are drafted for the sake of governments, professionals, and hospitals the decision-makers will be dealing with on behalf of this woman. These bodies are incredibly careful when it comes to dealing with substitute decision makers. If there is ANY ambiguity as to who is the decision-maker, if the decision-makers can't give clear direction, or the validity of the persons wishes as expressed in Power of Attorney documents, they will not cooperate and it will create frustration and delays at the worst possible moment.

You mentioned she wants to give this authority to only two of the three children. I would strongly suggest that either all three be made decision-makers or only one does. Again, the professionals the family will be dealing with won't do anything without clear direction. So what happens when (not if, when) the two disagree? Paralysis. Paralysis in the moments when these decisions are required can be expensive and painful (both physically and emotionally). It's important for the family to be able to discuss what's best, so everyone can have their say, feel heard, and hopefully come to a consensus. But what the bodies they will be giving direction to need is a clear, unambiguous decision. Ideally, one person should be designated that can make a final decision in the event that the family is at an impasse about what to do.

However, if this woman is committed to naming 2 of her 3 children, then at the very least, she should sit down with ALL of them (assuming the third doesn't have mental capacity challenges that make it obviously unwise for them to be involved in these decisions), explain why she is making the choice that she is, and get at least some level of buy-in.

Wanting to help this woman is wonderful, and I know your intentions are only the kindest. But honestly, perpetuating the idea for her that this can be handled on the cheap is doing her no favours and could prove to be very painful for her family down the road. Please reconsider.
posted by dry white toast at 8:09 AM on February 7 [1 favorite]

Thanks to everyone for their answers, and I really, really appreciate the personal anecdotes that some of you have given--those are the kinds of things that really highlight some of the bad things that can happen.

I personally would prefer she speak with a lawyer, but money is a concern for her, so I figured I'd at least ask if there are other options... for some reason I never considered seeing if an estate/wills/trust attorney would do it pro bono or sliding scale. D'oh!

Again, much appreciated. I'm hoping she'll see a qualified lawyer instead of trying to do this on the cheap... she likes to cut corners, even though she's been told this isn't something she should skimp on.
posted by Verdandi at 6:47 PM on February 7