Your Will, Your Durable Power of Attorney and Your Advance Directive-Avoiding Traps for the Unwary

Careful drafting of non-testamentary documents is necessary to avoid future conflicts.

A complete estate plan consists of documents that detail what will happen after you have passed, but equally important are those giving guidance in the event of incapacity. With Americans living longer, issues related to long-term care along with memory loss are becoming more common. Deciding whether to leave a loved one on life support is another difficult time.

The end of life is not one that individuals want to consider, but having a plan in place eases the burden on loved ones. A couple may put together a comprehensive estate plan with the birth of their children that includes a will, trust, health care proxy and durable power of attorney. Thirty years and several grandchildren later it may no longer fully express the desires of the couple.

It is important when reviewing and updating documents to avoid doing so in a piecemeal way.

Non-Testamentary Documents: What Are They?

Testamentary documents are documents which are formal documents which dispose of your property upon death. Typically, Testamentary documents consist of a Will, or Codicils, which amend or change the will.

You can direct disposition of your property and your wishes regarding your health care through documents which do not require the formality of probate. Through Revocable Living Trusts, Advanced Directives, and Durable Powers of Attorney (DPOA) you can make decisions regarding who, and how your property and health will be managed, should you become infirm or incapacitated. Addressing these important, and admittedly unpleasant questions, will assist in streamlining the process for your loved ones, when the time comes.

The living will lists your preferences when it comes to life-sustaining treatment. Do you want interventions such a tube feedings, mechanical respiration or antibiotics to keep you alive? If found irreversibly brain dead would you want artificial life support removed? Do you have a preference on organ donation?

The power of attorney is much broader. It names someone who you trust to speak on your behalf when you are unable. Often this person handles financial matters including payment of medical or nursing home bills when you are no longer able. You may designate a power of attorney for a more limited scope, for example if unable to attend a closing on a property.

There could be many reasons to designate different people for each role. You may want to select a trusted friend or relative who can ask challenging questions of medical professionals to carry through on your wishes. Consider whether the individual will be able to put aside personal feelings and remove life support if that is your request.

When Non-Testamentary Documents are In Conflict With Your Will

Non-testamentary documents can provide broad powers and discretion to those whom you have chosen to act on your behalf. For instance, an Attorney in Fact (one acting under a DPOA) can have virtually limitless authority to sell property, dispose of assets and liquidate accounts, if consistent with the terms of the Power of Attorney. What happens then, when the exercise of the rights, comes into conflict with existing disposition of property under the terms of a will. For instance, what happens if a Will provides for Blackacre, the family farm, to go one child, and the DPOA allows another child to dispose of assets in order to care for an infirm parent? The failure to address inconsistencies like this can result in litigation and accusations of breach of fiduciary duty and fraud.

Seek guidance in drafting and reviewing documents

Ultimately, it is critical to have a unified and consistent Estate Plan, which makes specific provisions for decision making in the event of your long-term disability or incapacity, as well as distribution of assets upon death. When major life events happen, it is usually a good idea to review end of life directives. If you recently divorced, you may no longer want your ex-spouse listed as your durable power of attorney. An estate planning attorney can help with the process and ensure your wishes are clear and consistent throughout all your documents.

Keep a "Doomsday File"

As grim as it sounds, your careful planning will be lost if the documents making up your estate plan are jumbled, marked up with notes or inconsistent. Your advance planning may also go to waste if your loved ones cannot locate your directives. Originals should generally stay with the lawyer who drafted them. It often is a good idea to provide a copy to your doctor's office and keep a copy at your home. A small card in your wallet describing where to find the directives is also helpful.

Keywords: Estate planning, Durable Power of Attorney