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Jewish World Review June 25, 2007 / 9 Tamuz, 5767 Protect your estate from greedy hands By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My wife and I are not wealthy, but we're comfortable. We will appoint each other to act under our durable powers of attorney, but we are having a problem deciding what to do about alternates should one of us be unable to act for the other. We have two children, and while we are not really comfortable appointing either of them for various reasons, we may not have a choice. If we appoint a child and one of us goes into a nursing home, how can we monitor what happens to our resources — which we want to ensure go for our care and not someone else's bills while we are alive? Also, what controls can be put in place to prevent imprudent spending? For example, if the child acting for us does not do the right thing, how can the other child review his actions, and for how long after death can wrong deeds using a power of attorney be reviewed and corrected? We have been to a lawyer who suggests appointing both children to act, but since they don't get along, this won't work. A: Based on other readers' inquiries, you have joined a growing number of seniors and baby boomers who are trying to solve the same problems: Who will write the checks to provide for my care should I become incapacitated (in a way that does not corrupt my estate plan), and how can I and other beneficiaries of my estate ensure that my directions are monitored and carried out? First, we agree that your lawyer's suggestion to appoint two people who don't get along is bad advice that will probably cause expensive probate court litigation. At least with the probate court, however, there would be supervision, bonds, etc. Still, that is an expensive way to do business. The best choice would be to find a small bank trust department to act as your alternate attorneys. We say "small bank trust department" because if your liquid assets are not in the $1 million or $2 million range, you will not get the attention of larger banks and brokerage firms that offer trust services. When you look at a trust department, make sure to find out about fees and turnover among trust personnel. Nothing is more frustrating than having your account handed off from one person to another who knows nothing about your situation. A personal relationship with a trust officer is essential. If you choose to go this route, your powers of attorney should include how you want to be treated, your preferred investment policy, fees, who gets copies of your statements each month or quarter, and which accountant reviews the account each month and discloses to each of your children what is spent on what each month. If you decide to use one of your children as an agent, your document could be specially drafted to provide for monthly or quarterly audits by a certified public accountant, and should not allow gifting while you are alive unless you wish to limit gifts to children or grandchildren to specific amounts that are made simultaneously to each child or grandchild. While another alternative would be for you and your wife to use a revocable living trust, you will have the same dilemma with alternate fiduciaries as you are having with your powers of attorney. Additionally, if a mistake is made and an asset does not get transferred into the trust, without a power of attorney, the trustee would be unable to deal with that asset. Taking the NextStep: There is no easy solution to your question, but rest assured that powers of attorney you find on the Internet or that are forms on a word processor won't cut it. Expect to pay more for the time a lawyer will spend to do it right. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2007, Jan Warner

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