Many people don’t realize that one of the key documents, that is part of a Living Trust-centered estate plan, is what’s called a Durable Power of Attorney.  The person that you appoint to be your “agent” under this power of attorney has vast powers to handle your financial affairs, but only at such time that you should become so incapacitated that you cannot handle your financial matters yourself.  The Living Trust already has similar provisions, but this Power of Attorney is often required by third-parties when conducting financial transactions, such as selling a property, obtaining a loan or mortgage, filing tax returns, doing income and estate tax planning, obtaining government benefits and contracting for nursing care. 

A Cautionary Tale

We recently had a case in our office where a client had, many years ago, named her oldest son as the agent under their Power of Attorney (as well as named him as the Successor Trustee of her Living Trust) if something were to happen to her.  Unfortunately, she had not come back in for over 5 years to review her estate plan.  If she had, we likely would have discovered that the oldest son was no longer the best choice to act, given his personal problems and estranged relationship with other family members.

Unbeknownst to us (and the client!), it appears that her son somehow utilized the Power of Attorney to withdraw assets out of the Living Trust and transfer them to himself (even though technically this was not allowed, but third parties don’t always carefully read the Power of Attorney document).  The son was also able to change the beneficiaries on the client’s retirement plans and IRAs, so that they would all go to him and exclude his siblings.  (And, by the way, if that wasn’t enough, he later tried to fake his mother’s death, by creating a fraudulent death certificate, so he could take over the rest of her Living Trust assets!)

This may be an extreme case of misuse of a Power of Attorney.  However, sadly, we are seeing more and more incidents of this kind of elder abuse committed by individuals who were originally trusted to act under the estate plan and no longer should be. 

Making Sure Your Plan is Up-to-date
and You’re Properly Protected!

We regularly contact our clients to remind them of the free estate plan checkup meeting they’re entitled to every 3 years.  While a good number of our clients do come in for their free checkup meetings, unfortunately there are many who do not.  During this free checkup meeting, the attorney meets only with the client, when discussing the key aspects of the plan, with nobody else present, in order to ensure that the client and his or her decisions are not unduly influenced by anyone.  We are able to determine whether the original agent chosen under the Durable Power of Attorney and the original choice of Successor Trustee of the Living Trust are still appropriate and reflect what the client wants.  It’s during these review meetings that we also sometimes discover instances where the client may be evidencing reduced capacity, and/or there may be some form of elder abuse already occurring, and are able to take actions to help protect the client.

Don’t Procrastinate,
Start the New Year Right and Make an Appointment!

Keep in mind that no estate plan, written by man or woman, is ever bulletproof.  It is designed at a specific point in time and many things can change over the years.  If you haven’t seen us for 3 years, contact our office at 1-800-756-5596 and schedule your free checkup meeting.  If you still aren’t sure about these and other reasons why you should come in and review your trust, check out our free brochure, then make your appointment!


Help Others You Know, Too!

Finally, if you have any friends, family members, neighbors or coworkers who have an estate plan (whether we prepared it or not), encourage them to attend one of our upcoming seminars.  If they are interested, they can then book a free consultation to have their existing estate plan reviewed by one of our attorneys.

By having an estate plan reviewed and kept up-to-date, they and you can enjoy the peace of mind that comes from knowing that everything is in proper order.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.
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