Читать книгу Powers of Attorney - Martin Shenkman - Страница 15

Providing a pretty good form and a comfortable interface doesn’t substitute for legal judgment and experience. While Rocket Lawyer is quite honest about this limitation, will a consumer really understand it? If you scroll to the bottom of the Rocket Lawyer home page and click on “terms of service” you’ll see a very detailed legal disclaimer that appropriately includes the following: “Rocketlawyer.com should not be used as a substitute for the advice of an attorney.” You can get a pretty good form with lots of options. But what you don’t get is the wisdom of someone who has had decades of experience with these issues to can guide you in making the right decisions for your situation. While Rocket Lawyer and other similar sites offer chat and call-in functions, and some of these may be with a lawyer, chatting with an attorney alone is not legal representation nor is it the type of personal interaction that can really protect you. If you meet face to face with an experienced estate attorney, and candidly review and discuss your overall circumstances, you will see that there is a range of steps you should take. Even an attorney on the other end of a chat cannot provide this essential component. To be fair, merely hiring a lawyer will not assuredly provide you this advantage either. You need to tailor a power of attorney and all other planning to address your goals and situation by:

•Hiring an attorney with appropriate knowledge and experience,

•Who actually takes the time to understand you and your circumstances,

•Who then works with you (which requires your cooperation and participation as well).

Here are a few of the issues to consider:

•You might inadvertently create a special or limited power when you in fact should have a broad or general power.

•You authorize your agent to have access to your safe deposit box but not to remove items. Will that really suffice? What if you store your original documents in the box? If you keep a list of passwords in your safe deposit box and you only authorize your agent to “inventory” the contents of your box will the bank merely permit the agent to note that there is a list of passwords and not to copy them? That could require your agent to obtain a court approval of taking the contents, a process that will be more time consuming and far more costly than having merely hired a lawyer to have drafted the document properly.

•You might not authorize the sale of real estate, such as your home, which could prove a significant mistake. The form is even more flexible and permits you to authorize your agent to sell a specific property and even to mandate that the sales price has to be above a certain minimum amount. Many people are very emotional about the sale of their home and may prohibit this. However, if you are disabled, which is the most likely scenario for your agent to be acting, why should a house you may not be able to live in be kept? The financial detriment of having to continue to pay carrying costs long after you have moved may be quite adverse. If you set a minimum sales price, what happens if the market declines? This type of approach if used in 2008 may have prevented an agent from selling a house for years as housing values collapsed. The only alternative to stop the financial outflow might be for your agent to go to court and try to get approval to sell. However, in contrast to a simpler and more general power, a judge may be loath to violate an express provision you included in a document. How can you appreciate all these nuances and know what to do? And what not to do? While you may think you’ve saved a lot of money, one single inadvisable decision might cost you a fortune.

•The template for the form permits you to list specific assets that can be sold. So I indicated that my coin collection can be sold by the agent. What if I also had a stamp or art collection? Does the fact that I have expressly listed a coin collection, but not my stamp collection imply that I did not want the agent to sell other collections? Or is it an indication that I merely forgot to list them. What if I only had a coin collection when I created the power of attorney but started collecting antiques after the form was prepared? What can the agent do with respect to the unmentioned collection?

•The form permitted me to authorize my agent to deal with my law practice, but that might be a direct violation of professional ethics and standards. Separate provisions should be made to deal with any professional practice. If you are a psychotherapist, you should make provisions for an appropriately licensed professional to step in and contact patients if you are temporarily disabled, or to transition your practice if you are permanently disabled. While addressing this in the Rocket Lawyer form is a great idea for some home-based businesses, it can be dangerously inadequate for not only a licensed professional but for anyone whose business needs more significant succession planning. Having addressed this in a power of attorney might lull you into believing you have addressed the issue when you have not adequately done so. In many cases, a closely held business might be someone’s most important asset. Without proper succession planning (who can take over and how), the value of that asset can be jeopardized. If you engage an estate planning professional in this type of discussion, all these ancillary points can be addressed. If you have a partner, you need an agreement to address succession. If you have a valuable business, you need adequate disability and life insurance to protect your loved ones. These issues are the stepping stones to an estate plan that will truly protect you and your loved ones. These matters are ancillary to the power document, but vital to your security.

These comments only address the first 1½ pages of the Rocket Lawyer power of attorney. The remaining 13½ pages have similar issues. So while the document is comprehensive and inexpensive, what do you really need to protect yourself? What will you miss if you attempt to fill in the document on your own? If you decide to go the Internet route, spend time learning about powers (or any other document you prepare on your own) and, most important, learn the danger points of when you really need to get professional help.