Arizona Estate Planning Lawyer & Attorney : Stephen Follett Law Firm : Probate Law and Trusts : Gilbert, Phoenix, Arizona

I posted earlier about Britney Spears legal issues arising from her tragic spiral down.  Now, the court has ordered $400,000.00 in payments to those involved in protecting her. 

Some of this couldn't be prevented by proper planning, however, it serves as an example for everyone.  Without proper planning you are almost guaranteeing the court will be involved if an issue comes up.

I hope you can see the important of finishing the basic elements of an estate plan including will, nomination of guardian for minor children, power of attorney, health care power of attorney and a living will.

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How much is legal advice worth?  Are you paying too much?  Are you paying enough?

When you decide how much to pay an attorney, you need to consider the value of the service provided.  Estate planning clients should ask themselves:

• How important is it that I obtain a plan that works?
• Do I want an attorney that does not focus on estate planning?
• Do I want to meet with the attorney and have all my questions answered?

With discounted estate planning you are only paying for executed documents.  However, the documents are only part of what makes an estate plan successful.  You can't afford to go to the cheapest estate planning lawyer or a non-lawyer, because far to often the estate plan fails.  It eventually costs more to fix the problem than going to an appropriate attorney in the first place. 

In my exeperience, buying documents is like buying a college diploma without learning.  Sure, the diploma is an important document.  But, the value is in the education.  With a discount attorney, you are prone to losing the important education that should accompany your documents.

Estate planning laws are increasingly complex because of divorce, remarriage, IRA and retirement accounts, mobility of couples between multiple states, and changing laws.  Consequently, you should expect two things from your estate planning attorney.  If you do not get them, then your plan has a significantly higher chance of failure.

• The attorney should educate you about your situation and your plan.  I find that it takes at least three or five hours over a series of appointments (initial meeting, signing meeting, and document delivery) to educate my clients.  You will ultimately do something that affects your estate plan and you need to know how to handle it.
• The attorney should focus on estate planning.  Estate planning is a complex area of law.  If your attorney doesn't have the specialized knowledge necessary, then that attorney will not be able to educate you.  Law is to specialized for an attorney to practice as a jack of all trades but master of none.  Focus is important.

The adage is true: you get what you pay for.  So, if it is important to you that your estate plan works, then choose an attorney who is committed to making that happen.  In my own experience, it takes time and a relationship with my clients to develop a working plan. 

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Thankfully, the boy I posted about below was returned to his mother.

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This is a disturbing account from a school within miles of my home.  Apparently, the non-custodial father came from Texas to take his son.  The father went to the school and asked to take his son to lunch and to buy shoes.  The boy never returned and the authorities are looking for them.

Unfortunately, the school did everything they could by following procedures.  It appears as though the paperwork permitted the father to take his son, even though he had no right to custody of his son.

The lesson of this story is parents need to do everything they can to protect their children from harm.  Hopefully, the boy is recovered safely.  The fear and anguish of the mother must be terrible.

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Americans still do not plan for their deaths.  In a survey by lawyers.com (sm) over half (55 percent) of all adult Americans do not have a will.  The reasons from the survey include:

• Ignorance is bliss: One in ten (10 percent) American adults
who do not have any elements of an estate plan say it’s
because they don’t want to think about dying or becoming
incapacitated.
• Where to begin?: Similarly, nearly one in ten (9 percent)
adults say they don’t have an estate plan in place because
they don’t know who to talk to about creating such
documents. This percentage nearly doubled from 2004
(5percent).
• But I don’t need a will: Nearly one in four (24 percent) of
adults say their biggest reason for not having an estate
plan is a lack of sufficient assets. This was also the top
reason cited in the 2004 survey (21 percent).

These three reasons are not very good ones.  We are not immortal.  We should plan for both our potential incapacity and death.   You can go here to get free forms and information designed by the Arizona Attorney General to help you plan for your end of life healthcare.

If you do not know where to find an estate planning attorney, start with the Arizona State Bar.  Choose a lawyer that focuses on estate planning so he or she can anticipate issues and knows the latest law and planning techniques.  Find one you like.

You may think you have no reason to create a will.  However, if you have minor children, you absolutely need a will to name guardians.

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An article in the Arizona Republic discussed the issues of funeral home pricing.  Many consumer activists point to the vast difference in pricing between funeral homes for the same services.  I was hit pretty hard by the charge for $500.00 to transport flowers.  Wow. 

The price difference between services and funeral homes was vast as well.  The prices cited in the article varied from $1,305 to $4,700 for approximately the same basic services.  However, there could be other intangibles that would make it worth the extra cost, such as personalized attention.  In a time of grief, that could be very important to a family.

The article pointed out that consumer activist worry about deceptive and abusive practices because "family members must make decisions about these services at a time when they're grieving and least equipped to make decisions about money."   The activists mentioned common problems are:

• Common funeral-service terminology can be confusing, making it difficult to comparison shop.

• Some businesses employ high-pressure tactics or tack on charges late in the process.

• There's little regulation, with most of the decision-making burden left to consumers.

Like every other aspect of end of life decisions, it is suggested that you make decisions ahead of time.  It can save incredible emotional distress and possibly thousands of dollars.  It can also help you find the appropriate services for the appropriate price.

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When I speak with couples about their estate planning many honestly believe their kids and their family will handle the end of their life respectfully because they all get along now.  However, long experience demonstrates that parents do not consider the effect of a significant stressful event in the complex tangle of family emotions and relationships.

The death or serious illness of a loved one introduces a significant change that alters the balance of power and balance of interests.  You cannot anticipate how the balances will shift.  The child or loved one that has always done what you wanted during life will suddenly rationalize why they should do something other than follow your wishes.

Please don't be naive and believe it only happens to others.  It can happen to you as easily as it happens to others.

In this article in the Wall Street Journal (pointed out by Professor Beyer) the author reviews her family's experience when her mother executed a health care power of attorney, also known as a health care proxy or health care directive before she went for serious surgery.

What follows next is just a portion of her experience that demonstrates the very strong emotions and reactions that follow important decisions regarding appointment of a health care power of attorney or proxy.

I thought mom's logic made sense: Bob has been her companion of almost 20 years -- though not married, they might as well be. And since her oldest son, my brother Mike, lives in Texas, Mom chose her second-oldest (me) to be her second proxy. (What mother wants her child agonizing over making life or death decisions from halfway across the country?)

But Melissa didn't see it that way. As the youngest child, Melissa has always been especially close with our mom and she felt strongly that she knew mom's wishes best. Melissa felt she should be the one to make decisions when it came to anything as serious as end-of-life care for our mother.

Obviously, the mother made her choice based upon her important factors and values.  But, her daughter Melissa thought other factors and values should have applied, creating the conflict.  This conflict hadn't appeared before in the complex family relationship, simply because it had never been raised in the family before.

No one knows the complex emotions that are below the surface in our loved ones.  Consequently, if appropriate you can share your decisions and address the complex emotions before the time of crisis.

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This post continues on the previous one.  In another article, linked to by Professor Beyer, you will find important considerations for your power of attorney. 

Specifically, the author mentions reasons that financial institutions commonly reject powers of attorney. 

•The financial institution may not be familiar with the person given power of attorney and may be worried about fraud.

•The institution may be concerned that the power of attorney has been revoked.

"If you change it or revoke it, you need to tell us, otherwise we will assume this is good until you tell us," Mr. Daugherty said.

•There's a risk that the person given power of attorney may exceed his or her authority.

Because of these risks, you should plan for them to avoid them.  If you do not, then:

"You don't necessarily know it's a problem until it's too late to fix it because you don't generally act on a power of attorney unless you need to, and when you need to, you can't," Mr. Sharpe said.

His clients Sandy and Gary Mayfield of Denton ran into problems when they were buying their home last year while Mr. Mayfield was on an overseas assignment.

Mrs. Mayfield said they had to revise their power of attorney four times. And, on the day the deal closed, the title company required Mr. Mayfield to call from his international location to verify that he was alive and that he gave his wife power of attorney to handle the transaction.
"It was crazy," Mrs. Mayfield said. "I have never gone through such a hassle in my life. What good does this piece of paper do if they're not going to honor it?"

The house purchase was eventually completed.

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What you don't know about powers of attorney can hurt you!!!!  With each client I advise, I spend time explaining the legal aspect of planning.  But, most importantly, I focus on the practical aspect of implementing their plan.  I always review the pitfalls with them. 

Powers of attorney are especially succeptible to failure/rejection by banks and other financial institutions because they can be liable for fraud if they assist someone drain an account.  This is the reason why it is very important that every "t" is crossed and every "i" is dotted.  There are many ways to make a mistake, but few ways to do it right.  Just filling out a form and executing it may not be sufficient for your needs.

This post from Gerry Beyer brought to my attention this real life story of a son who took 9 trips to the bank before it honored his power of attorney over his father.  Unfortunately, this is all to common. 

This is why the assistance of a qualified attorney can prove invaluable.  If the bank ultimately rejected the power of attorney, then expensive guardian/conservator proceedings would have been the only way to reach his money.  Truthfully, there likely would have been little left of the meager IRAs after attorney fees and court costs.

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People are becoming savvy about how the law affects them, especially as more people are experiencing divorce and its effects.  They understand and feel the need for a different result.

In this article, Kathleen Pender offers some basic advice about a "pre-nup" agreement that is the the principle method to reach a different result on divorce.  Here is a list of people suggested by the article that should consider a pre-nup:

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