A year or so ago I was engaged by Alice, a nice woman in her early 80’s who wanted to do
some estate planning. How did Alice get to me? Her daughter called me with a very simple
request, “My mom needs a power of attorney.”
Now, such requests are not uncommon. For example, we have received calls before from
former clients who requested that we meet their parents and prepare an estate plan for them.
However, in this particular case, I did not know Alice’s daughter before she called.
What do you think my first question to Alice’s daughter was on that initial phone call? Well,
my first question was to ask her what her mother’s name was. My next question, however,
was more important: “Why is Alice not calling me herself?”
Alice’s daughter then explained to me that her mother was getting up there in years and did
not really know how to go about getting her affairs in order. I was unable to talk to Alice
during that initial phone call but we arranged a meeting for her to come in for a consultation
to discuss estate planning and the possible need for a power of attorney.
Unfortunately, sometimes that call comes too late. The parent may have a major illness or
incapacity that simply renders him or her unable to execute a will, power of attorney, or
health care directive appointing a trusted agent to handle their affairs when they become
unable to do so. At this point, we are limited in what we can do or offer. In a case like that, it
may be necessary to have a guardian appointed for the parent but that can be expensive,
time consuming and somewhat invasive of one’s privacy.
Let me get back to Alice. Alice came in a few days after the initial call from her daughter. She
arrived for the meeting with her daughter, but I advised her daughter that I would prefer to
meet with Alice alone. Her daughter was fine with this condition, as was Alice. Why meet with
Alice in person and alone? Well, Alice was to be my client, not her daughter. Also, given what
her daughter told me about why her mother needed a power of attorney, I had concerns that
Alice might not have the mental capacity to execute important legal documents like a new
will or power of attorney. I also wanted to assure myself, frankly, that Alice’s daughter was
not trying to take advantage of her mother.
I spent time at that meeting educating Alice about the estate planning process, learning
about her family and goals, and just as importantly, satisfying myself that she had the legal
capacity to sign estate planning documents. I was also satisfied that neither her daughter nor
anyone else was attempting to unduly influence Alice’s decisions. We eventually completed a
new estate plan for Alice, putting her mind at ease. While Alice was still able to do so, she was
the one making these highly personal decisions.
What is the lesson here? For me it is simply this, life is uncertain. All too often curveballs get
thrown our way, but there are things we can do to try and anticipate and plan for some of
those curveballs. The best time to plan for possible incapacity is while you have the capacity
to do so, or before you notice that a parent or older loved one seems to be slipping mentally.
We can help. For more information on estate planning, including powers of attorney, please
contact our office at 215-572- 8111.
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