28th Feb 2018

Before we continue looking at the main issues in a Durable Power of Attorney, this blog post stops and focuses on perhaps the key issue in that document and all estate planning documents: who is in charge.

Sometimes in estate planning the tendency is to get overly focused on tax issues, property, or other pressing details. It is key not to overlook this foundational decision in the process: who should be named to make sure the estate plan works the way it was intended.

In a Trust situation, this is called a Trustee. Pardon the pun, but this kernel of truth is worth it: “the key thing about a Trustee is that they be Trust-y.”  In a Durable Power of Attorney, it is called an Attorney-in-Fact.  In an Advance Directive for Health Care, the name is Health Care Proxy.  In a Will, the term is Personal Representative.

There are other terms. And there are details and nuance and boundaries.  But basically, the person named in these various documents is in charge.  They have to follow the document(s). They have to make decisions and take action.  Depending on the document and role, this person takes care of the person that made the estate plan, their property, or key aspects of their life and affairs.

Sometimes this should be a spouse or an oldest child; sometimes naming that person would lead to a trainwreck. Sometimes this should be more than one person; sometimes having too many people involved could bog down a situation to a standstill.  Sometimes having someone nearby is important, but often in todays world, most things can be taken care of by distance.  Sometimes keeping thing within a family is key.  Sometimes keeping things outside a family is key.

The person named does not have to be a superman or superwoman and do everything on their own. They will often need counsel or other advisors or agents to help them.  But even then, they need to be able to recognize that need and find and work with good people.

A “perfect” plan on paper can be disrupted by the wrong person executing the plan. And sometimes a less than perfect plan or situation can be worked out with great success by the right person executing the plan.

There is a powerful human element in both the creation of an estate plan (making a will, durable power of attorney, etc.) and also the administration of an estate plan (probating an estate, administering a trust, etc.).

Whatever the ultimate plan and decision, the main point is that when making an estate plan, intentional and thoughtful consideration should be given to who is going to be in charge. This consideration also need to consider alternates and build in flexibility.

If our office may be of assistance to you in these areas, do not hesitate to contact us at (580) 338-6503 or at coryhicks@fieldandhicks.com or using any of our contact information in the profile.  You can also visit www.fieldandhicks.com for more information.

This blog contains general information and the opinions of the author – not legal advice; you should seek the advice of competent counsel (attorney/lawyer) when considering any legal issues.

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