A power of attorney (“POA”) is a foundational estate planning document that allows another individual to act and make decisions on your behalf. Such authority is especially important if you ever lose mental capacity or are unable to act. In the written POA, the individual executing the document (the “principal”) appoints another individual (the “agent”) to make financial or health care decisions for the principal. Durable powers of attorney are not affected by the subsequent incapacity of the principal.
If you have an existing power of attorney, you may already be well acquainted with the document. However, you may not be aware of recent changes to Pennsylvania’s law governing financial powers of attorney.
Recently, the law in Pennsylvania changed as it relates to powers of attorney that deal with financial directives. Act 95 was signed into law in July 2014 by Governor Tom Corbett. Parts of the law became effective immediately and the remaining portions were effective as of January 1, 2015.
What Are You Waiting For?
Let's say you have a child with "special needs," or another family member. If your estate plan doesn’t have a special needs trust, why not? Here are a few of the excuses I’ve heard, and some thoughts to consider:
I don't have enough money to justify a special needs trust. Really? You don't have $2,000? Because that's all you have to leave to your child outside a special needs trust to jeopardize their SSI and Medicaid eligibility.
I can't afford to pay for the special needs trust. It can be expensive to get good legal help. But the cost of preparing a special needs trust for your child is likely to be much less than the cost of care for a couple of months, which is what will happen if you die without a special needs trust, since it will take that long to maneuver an alternative plan in place. Even if there is no loss of benefits, the cost of fixing the problem after your death will be several times that of getting a good plan in place now, and the result will not be as good.
With the increase in complexity of today's family structures and the dynamics that can result, the family members of a loved one who has passed away often find themselves in a position in which they question the validity of their loved one's purported estate plan. The family members may doubt that the decedent's disposition actually reflects his or her wishes, and as a result, the family may want to challenge the will's validity. In order to successfully do so, the family members typically must file a will contest action. In such actions, the court is asked to disregard the decedent's will and instead provide a distribution of the decedent's estate which more closely resembles what the decedent actually intended. The family members must allege that there are grounds for setting aside the decedent's will, including the following:
- Undue influence—A will contest on the basis of undue influence involves the issue of whether the decedent, of his or her own free will, made the distribution provided in his or her estate plan, free from coercion by another individual. In Pennsylvania, a person challenging a will on the basis of undue influence must demonstrate the following elements: 1) a confidential relationship between the proponent of the will's validity and the testator; 2) the proponent of the will's validity receives a substantial benefit under the will; and 3) the testator had a weakened intellect.