POWER OF ATTORNEY AND ESTATE PLANNING FOR GAY AND LESBIAN COUPLES "Provide for Your Loved Ones" By Kenne th A. Verca m m e n As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority do not take the time to create a Power of Attorney. National statistics indicate that 80% of Americans die without leaving a Will. Even more do not have a Power of Attorney. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the terminally ill, rich or married with children need to have Living Wills). Whatever the excuse, it is clear that people would benefit from having a Power of Attorney. In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays. Reasons to have a Power of Attorne y What are these powers of attor ne y? A Power of Attorney is a writte n document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney- in-fact") to act on the principal's behalf. In general, an attorney- in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.
In the abs e n c e of a Power of Attorney or other legal arran g e m e n t to distribut e proper t y if you beco m e disable d, your part n e r canno t pay your bills or acce s s your ass e t s. The result can be lengt hy delays. The term " durable " in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be
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very broad or very narrow in accordance with the needs of the principal. Why is Power of Attorne y so impor ta n t? Every adult has day- to- day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live- in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the new New Jersey Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now. The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointmen t of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members. Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following: 1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.
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2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. 3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent. 4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities. 5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed. 6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions. 7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing. You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
If you hav e n ' t yet upd a t e d your Living Will power of 3
attorn e y to reflect curre n t feder al privacy rules, it's time to do so. If you don't have a POA, you should think about obtaining one, esp e ci ally if you'r e getting up ther e in year s. According to the Home News Tribun e "Updat e Health Care POA" January 17, 2003, pag e 5, Health Care Powers of Attorney (Living Wills) are directives that appoint a relative, friend or som e other party, known as an "age n t", to mak e me dic al decisions on your beh alf if you can't do so, for reaso n s ranging from injuries sust ain e d in a car crash to incap a city resulting from de m e n ti a. Health care POAs can be written as stan d- alone docu m e n t s but typically are includ e d along with a living trust, a mor e compr e h e n siv e est a t eplanning tool. It's best to have a lawyer write a POA for you, and it's wise to have an attor n e y insert any chan g e s . The Feder al Health Insura n c e Portability and Account a bility Act (HIPAA), which took effect in 2001, mak e s it wise to prep a r e a Living Will and Power of Attorney. These Feder al HIPAA regul ations aim to safeg u a r d patien t medic al records by 4
imposing privacy rules on doctors, phar m a ci s t s, other medic al staff, insur a n c e comp a ni e s and so on. HIPAA calls for fines - in som e cas e s, stiff ones- and even prison ter m s for disclosur e violations, thus making healt h care provider s think twice about giving out a patie nt ' s inform a tion to other s. "Powers of Attorney nee d to be adjust e d to allow our clients imm e di a t e and hassl e- free acce s s to the medic al records of the par e n t s and other loved ones on whose beh alf they are acting", wrot e Arizona attorn e y Thoma s Murphy in this mont h s issue of Arizona Attorney, a publication of the Stat e Bar. We reco m m e n d new healt h care POA Living Wills that would cover the following points: A stat e m e n t directing physician s, hospit als, phar m a ci e s, insur er s and other s to relea s e a patien t ' s healt h records to the age n t . Murphy emp h a siz e d thes e directive s should be upd a t e d to includ e specific refer e n c e s to HIPAA. The bigge s t proble m is that many insur er s will not honor any pre- April POAs, yet age n t s often must confer with insur a n c e 5
comp a ni e s before the firms will pay a patie nt ' s me dic al bills. A Power of Attorney is an appoint m e n t of anot h e r person as one's age n t. A Power of Attorn ey creat e s a principal- age n t relations hip. You, the grant or of the Power of Attorney, are the principal. The perso n to whom you grant the Power of Attorn ey is your age n t . The age n t is nor m ally called an "attor n e y- in-fact." The attor n e y- in-fact does not beco m e the owner of your proper t y, but is mer ely per mit t e d to deal with it within the ter m s set out in the Power of Attorney. Since an attorn e y- in-fact has the power to deal with your prop er ty, you, natur ally, must be careful to give such a power only to a trustwort hy person. You have entr us t e d to your attorn e y- in-fact thos e powers which are stat e d in your Power of Attorney. The Power of Attorney if effective upon signing is a "dur abl e power." This me a n s that if you should beco m e incomp e t e n t and be unabl e physically or me n t ally to han dl e your own affairs, the Power of Attorney, never t h el e s s , will continu e to be as good as it was on the day that you signe d it. If you beco m e incomp e t e n t , the Power of Attorn ey will ter min a t e only upon 1) a Court's declaring you to be incomp e t e n t or 2) upon your dea t h. The attorn e y- in-fact may continu e to use the Power of Attorney and acts perfor m e d und er the Power of Attorney will be valid until either of thos e two even t s occurs, after which time acts perfor m e d by the attor n e y- in-fact will no longer be valid. Conse q u e n tly, even if you beco m e incomp e t e n t but no Court declar e s you to be so the Power of Attorney will still be effective. Most peopl e who give a Power of Attorney to som e o n e else do it with the thoug h t that if they should beco m e ill or incap a cit a t e d or if they should trav el, the Power of Attorney will per mit the holder of it to pay their bills and to han dl e all of their affairs for the m as limited in the Power of Attorney. This is what your attor n e y- in-fact may do for you und er the Power of Attorney which I have prep ar e d for you. The granting of a Power of Attorn ey is not like the 6
crea tion of a joint ten a n c y in proper t y. Under a joint ten a n cy, eac h of the joint ten a n t s has a proper ty inter e s t in the prop er ty so held, wher e a s , a person holding a Power of Attorney, while having the power to deal with the proper t y, does not own any part of it nor can that person beco m e the owner of it und er the Power of Attorney by virtue of the Power of Attorney itself. This, howev er, does not prev e n t the holder of the Power of Attorney from transferring the proper t y to hims elf or hers elf. This is anot h e r reaso n for giving such a power only to one whom you can trust. When ev e r your attor n e y- in-fact exercis e s any of the power s grant e d und er the Power of Attorney, your attor n e yin-fact must be prep ar e d to show the Power of Attorn ey to anyon e who que stion s the right to use it. If your attorn e y- infact deals with the title to real est a t e , it will be nec e s s a r y for the Power of Attorn ey to be record e d. I see no reaso n to record the Power of Attorney until such time as proper t y may be convey e d unless ther e is fear that the docu m e n t might be lost. Occasion ally when real est a t e is dealt with by an attorn e y- in-fact, an abstr a c t or or a title insur a n c e comp a n y will raise a ques tion reg ar din g the use of the Power of Attorney. Unfortun a t ely, ther e is no way that we can control this. This is inde e d unfortun a t e , but you hav e no other inexp e n siv e recour s e when you use a Power of Attorney. Kenneth A. Vercam m e n is an Edison, Middlesex County, NJ trial attorney who has published125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published
by
New
Jersey
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Journal,
ABA
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Practice
Management Magazine, and New Jersey Lawyer. He is the Editor in Chief
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Review.
Mr.
Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 18 years. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings.
He serves as the
Editor of the popular legal website www.njlaws.com KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732- 572- 0500 (Fax) 732- 572- 0030 website: www.njlaws.com www.CentralJerseyElderLaw.com
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