Using Do-It-Yourself Legal Documents won’t give good “Bang for Your Buck”!

Legal documents that ostensibly seem easy to prepare and execute are often subject to specific and subtle nuances that only an experienced practitioner will be familiar with.

A good portion of the initial consultation with an experienced estate planning lawyer will be spent collecting pertinent information, and coming up with a strategy that incorporates both estate and/or elder law planning that meets the client’s specific needs.  The attorney should be asking to review the client’s prior estate/elder law documents during the consultation if, in fact, any planning had been done previously. Sometimes it comes to light that the documents that were prepared by individuals without the expertise of an attorney are usually lacking the protection that is required by law, and can unfortunately lead to dire consequences.

Case Study: Health Care Proxy

Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. If a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make these decisions. It is important for the principal to convey his/her wishes regarding the administering of artificial nutrition and hydration in the actual health care proxy.  Failure to do this may result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place.

Second, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but this requires the help of someone with estate planning expertise.

The document must be witnessed by two individuals in order for its validity to be recognized. A person should not have his agent, spouse, or other related individual be a witness to the signing.

Case Study: Power of Attorney

Even more problems can be seen in do-it-yourself powers of attorney documents. The main focus of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to handling financial matters in case such individual becomes incapacitated. Many people naively believe that this document is one that is “simple” to prepare. This could not be further from the truth.  There are laws created to prevent the tremendous abuse which has been found in this particular area, with some appointed agents taking advantage of the disabled and elderly.

The power of attorney law mandates a lengthy document, and significantly restricts the actual power given to the agent over financial matters.  An individual should not cut corners by downloading a form from the internet, as this may result in a power of attorney that is not considered “statutory” and would therefore not be required to be legally recognized.

The power of attorney is an extremely important tool for an estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely blocked. It is imperative to have this document prepared by an experienced estate planning/elder law attorney.

Case Study: Last Will and Testament

A last will and testament is another document that must be prepared under the supervision of an experienced attorney. After the person who executed the will (the “decedent”) dies, the will gets admitted to probate court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest, can result in unnecessary delays, costly legal fees, and worse, an inability to complete the probate process.

These examples are just a few illustrations of how self-drafted documents, perhaps initially done to minimize costs, can result in poor planning and the ultimate expenditure of unnecessary legal fees to correct the harm that was created by the poorly written, albeit innocently conceived, documents.  It makes far more sense not to be “penny wise and pound foolish”.

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