Why It Pays to Have a Carefully Drafted POA – Part 2
In my post last week I told you about a call we received from a family member serving as agent under power of attorney (POA) for a client of ours. The son had been refused access to his mother’s individual retirement account (IRA) account because the bank claimed that the POA did not specifically include the power to access such accounts. Because financial institutions typically do not allow direct communication with their legal department I had to communicate through the local branch manager in order to resolve the issue. I asked the manager to have its legal department to cite the specific statute that requires explicit reference in a POA to IRAs. It could not. The POA I drafted did make specific reference to the section of New Jersey’s POA statute covering bank accounts which are defined to include checking, savings and certificates of deposit (CD). The account the agent was trying to access is a CD. It happens to be an IRA account but I pointed out to the manager that the statute does not distinguish between non-IRA and IRA CDs, therefore, the distinction is irrelevant here. I also alerted the manager to another section of the law that outlines the limited grounds for refusing to honor
Why You Need a Carefully Drafted POA (Part 1)
In this week’s blog post I want to talk about a call we received from a family member of a client whose power of attorney we prepared about 12 years ago. The son who called was acting as agent for his mother and needed to access her IRA account. The bank where it is located refused to allow him that access. Over the years we have had many calls like this from clients who have run into problems with financial institutions. This is usually caused either by the financial institution’s misapplication of the law or its insistence that it has a policy that differs from the law. In this case, the bank told the son that the POA did not specifically reference retirement accounts so it refused his request. That’s when he called us. When I called the bank myself, the bank manager told me that the POA must by law specifically reference retirement accounts. When I pressed her further she said the legal department that reviewed the document advised her of the bank’s position. I asked whether their attorney was located here in New Jersey. Not surprisingly, she said, “no, the legal department is in Ohio”. I’ve seen this story before. I told the manager that there is no specific section
If I Move to Another State Do I Need to Update my Legal Documents? (Part 2)
If I Move to Another State Do I Need to Update my Legal Documents? (Part 2) In my post last week I discussed the need to update a power of attorney or health care directive when one moves from one state to another. This week we talk about wills and trusts. Is there a need to update these as a result of a move? The execution of legal documents such as wills and trusts is governed by state law. In New Jersey wills should be signed before a notary and 2 witnesses. We have a self proving will statute. Provided the testator (person signing the will) and witnesses state by way of affidavit in the will that the testator signs willingly as his or her free and voluntarily act, not under constraint or undue influence and is over the age of 18, the process of admitting a will to probate is relatively easy. There is no need to submit the will to a judge or before a legal proceeding. The Surrogate instead examines the will to determine if it meets the statutory requirements and then accepts the will and appoints the executor. If the will does not meet the requirements, however, because the will was executed in another state where
If I Move to Another State Do I Need to Update my Documents?
It’s a common question we get from clients who intend to move out of New Jersey. We also get calls from people moving to New Jersey who want us to review estate planning documents prepared in another state. These documents may include wills, powers of attorney, health care directives and trusts. Do these documents need to be updated simply because of a change in residency? While there isn’t one answer that fits everyone there are a common set of questions. First let’s consider the power of attorney and health care directive. Each of these documents is controlled by state law. The power of attorney typically allows a principal to designate an agent to make decisions and carry out financial tasks on behalf of the principal. The health care directive designates a health care representative to make decisions for the declarant and may also include an instruction directive (commonly known as a living will), which provides instruction and direction (typically in an end of life situation) regarding the declarant’s wishes for health care if the declarant in the future lacks decision making capacity and cannot communicate those wishes. As long as these documents are executed in accordance with New Jersey law they should be honored, however, if you move to
Longtime Partners but Never Married (Part 5)
In last week’s post about Bill and Mary, I told you that we applied for a guardian to be appointed for each of them. The court approved their neighbor and friend, Nancy. Bill had sufficient assets to pay for his care for at least several years. Mary did not. By the time we were able to get Nancy qualified as guardian so that she could access Mary’s assets, her unpaid nursing home bill was already up to $60,000. Nancy was able to determine that she had about $100,000 in total assets so we needed to quickly prepare for Medicaid. The fact that Bill and Nancy had lived many years like a married couple but never did marry was a potential problem. That’s because of Medicaid’s 5 year look back. Mary and Bill combined their income into one joint account to pay household bills. Documenting for Medicaid what Mary’s money was spent on vs. what Bill’s money was spent on wouldn’t be easy. We would need to establish that Mary spent her money and received something of equal value in product and/or service for her. To the extent any of her funds were spent to benefit Bill that would be considered a transfer for less than fair value and would cause a
Longtime Partners but Never Married (Part 4)
In my last 3 posts I have been telling you about the saga of Bill and Mary. First Bill had a stroke. Mary called concerned about how to care for him and still be able to afford to pay her bills. Most of the assets, including the house, are in Bill’s name. Should they spend it all on his care Medicaid could cover the care but that wouldn’t leave Mary with much. I suggested marriage as a possible solution. When Mary then had a stroke marriage no longer was a viable option. Additionally, neither Bill nor Mary could serve as agent under the powers of attorney each had executed and neither had chosen an alternate. Now we had a new problem. Who would be able and willing to act on behalf of Bill and Mary to manage their finances and make important decisions concerning their care? Nancy, a friend and neighbor, told me what she knew about their family history. Mary had a cousin on the West Coast and Bill had a sibling with whom he had not spoken in 20 years. Nancy said she was willing to help in any way she could. I explained to Mary that we would need to file a legal action to request that a judge appoint