What happens if you don't have a Power of Attorney?

Power of attorney documents are executed when the person has capacity to legally designate someone as their decision maker.  However, some people wait too long and don’t have anyone when the time comes that they are unable to do so.  If this happens, loved ones or retirement facilities, or caretakers will have to file a guardianship proceeding to ensure that someone is legally able to make decisions on the incompetent person’s behalf. 

I have had the opportunity to do many guardianship cases.  A lot of them turn out great and mom or dad walk away with their child taking care of them for as long as they are still alive.  However, sometimes things don’t always turn out the way we expected and guardianship proceedings can go very badly.

I distinctly remember one case.  Dad died and mom was left living alone.  She didn’t have a power of attorney or anyone to make decisions on her behalf, but luckily for her, she had six children who all loved her dearly.  Mom was a professor for thirty years, brilliant lady, with a lovely home and many other assets.  She hadn’t planned for the future because she felt like her six children would band together and help her.  She eventually lost her faculties and needed assistance making financial decisions and important decisions regarding her healthcare.  When this happened, since she didn’t have a designated power of attorney, her children initiated a guardianship proceeding.  The children began fighting over mom’s care and wanted control of her money and decision making power about whether or not she would have to move to an assisted living facility.  Because the Court saw the discord and the arguments among these six siblings, the Court decided it was not in mom’s best interest for any of her children to be the guardian and the Court appointed a public guardian.  A public guardian is usually someone with the county’s health and human services program who serves as guardian when there is no one appropriate to serve. 

Now, keep in mind, mom has six children who love her, who knows her wants and needs, and who know what would make her happiest.  The public guardian, although possibly very good at their job, has no history with this woman.  Because the children were angry with each other at this point, the public guardian decided it was best that mom not see the children at all because they felt it was stressful for her to be in the midst of their discord.  Mom lived the rest of her life with supervised visits with her kids and very limited time with them. 

My point is not to scare you, but to make you aware that if you don’t have a plan, and you don’t designate someone to act as your decision maker, the county can step in as that person who makes the most important decisions of your life.

  

If you are interested in planning for your care and want a power of attorney, please contact an estate planning attorney.   

Leaving An Inheritance For Your Furry Family Members

For most of us who own pets, our pets are members of our family.  This is exactly how celebrity Leona Helmsley felt about her dog, Trouble, when she left $12 million for his care.  Unfortunately, she was not well advised and none of the instructions she left in her will were followed....the Court eventually reduced Trouble's inheritance to $2 million.  Leona, along with so many other pet lovers, are not well prepared and their dearly beloved pets are left behind uncared for for many reasons such as conflicts with other pets, allergies, and failed promises by family and friends.  

Estate planning for pets is a relatively new concept and estate planning attorneys are not asking clients about their pets as part of their routine intake questions.  As a pet owner and lover myself, I hope that one day, this will become a routine question since the law views pets as property and most people don't think of listing their pets as beneficiaries of their estates or trusts.

You may have received advice to list instructions or wishes in your will for someone to take care of your pet, but this is not enough to guarantee your pet's care.  Wills are not immediately effective upon death, so there will be a lag time between your death and the time your will is probated and enforced.  Also, your wishes or instructions are just that....your wishes cannot force your friend or family member to take care of your pet.  Wills also do not allow the disbursement of funds for the lifetime of a pet, so there will be no guarantee that funds will be available as long as your pet is alive.  There are ways, other than a will, to ensure long term care for your pet.  Some states recognize honorary trusts for pets, and fortunately, North Carolina is one of those states.  

The North Carolina Uniform Trust Code provides that a trust for the care of a pet alive at the time of the creation of the trust is valid, that no portion of the principal or the income of the trust may be converted to the use of the trustee or to any other use than for the benefit of the pet designated in the trust, and that the trust terminates upon the death of the animal.   Trusts are set up to provide a long term plan of care for your pet, that can start promptly upon your death and last until the pet is deceased.

There are many nuances of creating an honorary trust for your pet, such as reserving certain assets to leave out of probate, so that there are funds immediately available for your pet, naming a caretaker, and naming an alternate beneficiary upon the death of your pet.  Please contact an attorney if you have pets and are interested in ensuring their lifelong care.