Cheap Advice on Essential Documents Can Be Costly

By: Robert J. Kurre, Esq.

Most people realize that every adult should have a Health Care Proxy, Living Will, and Durable Powers of Attorney in order to provide for ongoing decision making without court involvement and to help ensure family harmony. Many people fail to realize, however, that such documents are sophisticated estate planning devices which contain many nuances and address complex and technical points of law. Whether they actually produce the desired results often depends on the source of the document. It has been my experience that individuals who decide not to retain a qualified elder law and estate planning attorney in this regard substantially underestimate the cost of “repairing” a document which does not produce the desired results. The use of pre-printed and inexpensive forms for estate planning documents can lead to an exorbitant cost to overcome their deficiencies and can have a negative effect on the rights of disabled or elderly persons. These deficiencies often are not discovered until a crisis develops.

There are many problem scenarios which can develop following the execution of pre-printed or inexpensive forms. Frequently, the forms are outdated, missing key provisions, and/or not even executed properly. The result is often devastating as such estate planning documents may be useless. Let us examine the case of Mr. Jones as an example. Mr. Jones believes that estate planning documents are commodities which should be obtained at the cheapest possible price. He believes that he may obtain a Durable Power of Attorney from the corner stationery store for a few dollars and that his interests will be fully protected. What Mr. Jones fails to realize is that the form he has obtained may not accomplish its intended purpose. Shortly after executing the form, Mr. Jones suffers a stroke and is incapacitated. He requires long term care. His wife discovers that the cost of his care will be $10,000 a month in a local nursing home. Mrs. Jones cannot afford to pay $10,000 a month for her husband’s care and she determines that she should apply for Medicaid for her husband. In order to qualify for Medicaid, Mr. Jones can only have a few thousand dollars in his name. Accordingly, Mrs. Jones goes to the bank and asks that Mr. Jones’ bank accounts be transferred out of his name. The bank officer asks if Mrs. Jones has been appointed Mr. Jones’ agent and she produces the Durable Power of Attorney form which Mr. Jones purchased at the stationery store. Unfortunately, the bank officer advises Mrs. Jones that the bank will not transfer Mr. Jones account to her because the form was not properly executed and, even if it was properly executed, it does not have appropriate provisions which would allow her to make the contemplated transfer. Mrs. Jones is left with no option but to commence a guardianship proceeding in court. A guardianship proceeding can cost ten to twenty times, or even more, of what the legal fee would have been to have a qualified elder law and estate planning attorney do the proper planning in the first instance.

Some members of the public feel that paying anything more than a nominal fee for estate planning documents is not appropriate as the law firm should be able to simply insert the client’s name and print the document from their computer. The amount of time spent physically preparing the documents, however, is only a small percentage of the time actually spent by a qualified elder law and estate planning attorney on the matter. The bulk of the attorney’s time is spent discussing with the client whether the form is even appropriate given the client’s circumstances, who the agents should be, what powers the agents should be given, the available options with respect to the different kinds of documents and the consequences of signing such documents. Additionally, the attorney’s time is spent reviewing the documents to make sure they accurately express the client’s intentions, supervising the proper execution of the same, and educating the client about how the forms should be safeguarded and how and when they should be used. A qualified elder law and estate planning also spends a considerable amount of time staying attuned to developments in the law to make sure the document being drafted is current, is drafted in the most effective manner possible, and is the document most suited to meet the individual’s needs.

To rely on a pre-printed or inexpensive form for proper elder law and estate planning is a practice fraught with danger. A document is only as good as its source. There are complex issues inherent in estate planning documents which preprinted or inexpensive forms often do not take into account. A qualified elder law and estate planning attorney can explain the nuances of elder law and estate planning documents and make certain that the planning meets your specific needs.