Jim Dresser was surprised to see Bev Knight in his waiting room. Jim, an estate planning attorney, had helped Bev and Don Knight set up their wills fifteen years ago. At the time the Knights preferred a simple estate plan and decided against using a family trust. Jim wondered why Bev was here without Don.
Jim invited Bev into his office. His assistant brought him the “Knight” file containing their estate planning documents. Bev told Jim she needed help to access the family accounts to pay bills that were piling up. Don had been in the hospital for six weeks with cancer, she said, and his doctors had told them he had two weeks to live.
Don was seventy years old, a retired state police officer. He always took care of the family finances. Bev, age sixty-six, was a homemaker who had never worked outside their home. Don enjoyed paying close attention to their investments in two different brokerage firms. He was proud that during thirty-five years of marriage their portfolio now amounted to $1 million. That was his goal: have enough money set aside so they would not have to worry about money for the rest of their lives. Don kept the accounts in his name only. That way he only needed his one signature when doing business. It was just easier, he felt. The only account in both names was a small checking account for household expenses that never held more than two thousand dollars.
Bev was in a state of panic because she did not have the money to pay the bills. She had called both brokerage companies to see how she could get money out. They told her she was not on the accounts, and they would only talk with her if she had Don’s financial power of attorney – signed by him – giving her the right to access them. So, she went home and found the financial power of attorney forms that she and Don had signed in Jim Dresser’s office fifteen years ago. Neither firm would accept it, saying the form was too old.
Bev asked Jim how she could start paying the bills. Jim asked if Don was too ill or too drugged to know what was going on. Bev answered no. She visited Don every day. They had talked about their finances, and he apologized that only his name was on the accounts. Jim suggested that Don sign a new financial power of attorney giving Bev the right to act on Don’s behalf. That should satisfy the brokerage firms. Jim offered to take the new form to the hospital the next day for Don to sign.
There were flowers on every surface in Don’s hospital room except the bedside tray when Jim and Bev came the next day. Don joked with Jim about making hospital visits. After catching up on one another’s family news, Jim felt confident that Don was mentally alert. They talked about the need for a new power of attorney form and went over the one adopted by the state legislature two years ago. Don signed and Jim notarized his signature.
Jim and Bev returned to his office. He made her copies and gave her the original to take to the brokerage firms. Two hours later, Bev was in tears when she called Jim to tell him neither place would accept it. Jim was livid and called both firms on Bev’s behalf. The first broker said she had no authority to accept it. Jim asked to speak to the firm’s attorney so they could straighten out the problem. He was told that the attorneys were not available. They would only speak with him if he sued the brokerage firm. He got the same run-around from the second firm. Jim was taken aback. He called again, this time asking to speak with the manager. The answer was the same. No, they would not honor the power of attorney and would be sending him a letter within the seven days required by law telling him why. One firm mentioned that they would accept a power of attorney form prepared by their own attorneys and offered to e-mail it to his office. The form did not arrive for a day, and when Jim took the form to the hospital for Don to sign, it was too late. Don was unable to sign any documents; he was in a coma and never recovered.
Bev had no choice. After Don’s death the only way for her to access the brokerage accounts and other assets titled in just Don’s name was to probate his estate by filing his Will with the local probate court and ask to be appointed as the personal representative (sometimes called excecutor) of Don’s estate. It took two weeks for the Judge to sign the order giving Bev the legal power to gather the brokerage accounts and other assets.
Six months after Don’s death, Bev returned to Jim’s office to update her estate plan now that she was a widow and she had settled Don’s estate. After her recent experience, she decided to create a family trust so that her children would never be in a similar impossible situation.
TIPS
- When a person is still mentally sharp, have them sign a “Power of Attorney” where they nominate a first and alternate family member or friend to make financial and health decisions for them when they are unable to help themselves.
- Set up on-line payment of bills and direct deposit for checks.
- For all titled assets, check who is the titled owner. Titled assets include:bank accounts and lock boxes, Certificates of Deposit, Money Market accounts, investments, annuities, vehicles, deeds.
- Coordinate the beneficiary designations on life insurance, annuities and retirement accounts with the estate plan (family trust or will).
RESOURCES
- Certified Elder Law National Attorney Directory:National Elver Law Foundation (nelf.org)
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Susan M. Graham just published a book entitled “Can Lawyers Always Save the Day for Seniors? – True Retirement Stories”. She wrote this to share stories of common problems for elders that can be avoided or minimized if they just took time to plan and seek help.
If you would like a copy, you can obtain it two ways: One, download it for free from the Senior Edge Legal Website, or two, you can have a hard copy for $10 to cover postage and handling. For a hard copy please request using our CONTACT US page on the website, or send an email with your request, method of payment (credit card or send us a check), and mailing address to info@senioredgelegal.com. If you choose to pay with a credit card, we will call you to obtain that information.
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