Tower of Giraffes

As I walked the path of our hotel complex, I came face to face with a giraffe.  It was surreal..  We both stared at each other with initial surprise then wonderment, for me.

When we encounter something strange or out of context, we pause to take it in, at least after the danger dissipates.  But what if that encounter results in danger.  We really never know when incapacity or death might happen.  In a nanosecond, we could be faced with that possibility. 

Are you prepared for the unexpected??

Contact us at http://www.ythlaw.com/ for your Powers of Attorney, Trusts, Wills, Living Wills and other advise and guidance on your estate planning needs.

Power of Attorney

I have blogged about the importance of having a power of attorney to address your financial affairs if you are ever incapacitated. More and more people understand the importance of the power of attorney but have questions about the formalities. They ask does your agent sign the power of attorney when you do? If not, when does the agent sign? Does the agent have to sign before a notary? How do I take the authority away from the agent? These are all good questions and the responses follow:

When does an agent sign the power of attorney?
The agent does not have to sign at the time that you sign your power of attorney. The agent's signature does not have to be notarized only the maker. In fact, since you only intend for your agent to use the power of attorney when you are incapacitated, then it is at that time that the agent signs and dates the power of attorney.

How do you revoke an agent's authority?
You should maintain your original powers of attorney. If you no longer want a person to serve as your agent then the powers of attorneys should be destroyed and new ones entered into. If your agent has an original power of attorney, then you must get it back and destroy it. Otherwise, you have to notify any one who may rely on the power of attorney that you have revoked your agent's authority. ALWAYS appoint someone whom you trust.

Springing Power of Attorney
There is another type of power of attorney referred to as a Springing Power of Attorney. It can only be used if a doctor has certified your incapacity and such certification must be attached to the power of attorney for it to be effective. The Springing Power of Attorney is revoked once your regain capacity.

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Should I plan NOW for possible future incapacity?

Question:
I have been the owner of a small restaurant for 25 years. Since my wife and children are not interested in the business when I die, I have provided for the sale of the business in my will. However, I have not addressed what will happen to the restaurant if I am unable to run it for a period of time due to an extended illness. I am 62 and enjoy taking care of the details of my business. Should I also plan now for possible future incapacity? What are my options?

Answer:
Yes, you should plan now for possible future incapacity

If you do not have a Power of Attorney, it is wise to have one. This will authorize someone to act on your behalf. Depending on the details of your business and number of employees, this may adequately cover you during recuperation.

Another alternative might be a revocable trusts. Among other uses, it can provide for the management of trust assets in case of incapacity. Your restaurant business could be placed in the trust and you can be both the trustee and beneficiary. You make the decisions about trust assets and you would be responsible for the income tax on any earnings of trust assets. Life goes on, pretty much, as before with only the title of the assets being in the trust. You would name a successor trustee for special cases as defined by the trust, ie. incapacity. This would be a person of your choice who would be under a legal duty to protect your assets. It avoids potential conflict among family members and any possible court involvement.

It is best for you to plan now and not leave to others, not as familiar with your business, to plan for you.

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Who will handle your financial/business affairs when you can not?

Everyone should have a plan to cover incapacity, especially business owners who do not have family members involved or interested in the business. What happens when you can not handle your financial affairs or run your business for a period of time due to an extended illness? Whether you are young or old, planning now for possible future incapacity is important because YOUR assets are at risk.

What are your options?
If you do not have a Power of Attorney, it is wise to have one. This Durable Power of Attorney, as it is often called, authorizes someone to act on your behalf. For someone without a business or with a simple estate, this document may adequately cover you for any period of incapacity. For those with businesses or complex estates, there are other alternatives to consider.

One such alternative might be a revocable trust. Among other uses, it can provide for the management of trust assets in case of incapacity. Your business could be placed in the trust and you can be both the trustee and beneficiary. You make the decisions about trust assets and you would be responsible for the income tax on any earnings of trust assets. Life goes on, pretty much, as before with only the title of the assets being in the trust. You would name a successor trustee for special cases as defined by the trust, ie. incapacity. This would be a person of your choice who would be under a legal duty to protect your assets. It avoids potential conflict among family members and any possible court involvement.

It is best for you to plan now and not leave to others, unfamiliar with your business, to plan for you.

Call (215) 321-4033 with questions and to learn more.

Mediation

Last week I took a mediation training course. It was very interesting to look at ways to resolve disputes between parties without litigation. This can be especially helpful in Probate Court when addressing will contests, guardianship (though incapacity can not be determined in mediation), inventory and accounting disputes and fiduciary issues. Another growing area for this practice is in Elder law.

Mediation allows me, as a neutral third party, to work with the disputing parties. My role as a trained mediator is to help parties listen to and talk with each other. I help them gain clarity on their options and the possibilities for moving forward. Often in this process, the parties gain a better understanding of each other's point of view. It is not my role to make the decisions for them or even tell them what to do. Nor, do I act as an advocate for either of the parties. In this transformative mediation process, parties if allowed the necessary space can begin to resolve their own conflict and in turn can save themselves and, if an estate is involved, the estate the growing expense of litigation.

I particularly like mediation because it empowers the individual in the decision making process. As the process progresses, in many cases, you can see the shift that all parties make towards reaching an amicable resolution. It is one that they take ownership of because it was not imposed upon them by legal system. If you happen to be in a dispute, consider mediation. I can help you with that choice. Contact my office today.