New York Estate Planning & Elder Law Blog
Ask any competent attorney for advice, and you will probably get the same answer: it depends! As frustrating as this is, it is for good reason. No two cases are the same, so without all the facts and well-researched law that is focused on those facts, no one can give you a definite answer. Even then, however, there are usually factors outside the attorney’s control that can be very important, such as who the judge might be, which jurisdiction the matter would be in, who is representing others in the matter, and so forth.
When it comes to estate planning, people like to ask the tough questions. One favorite is always, “Can I just get a simple will…nothing fancy, just the basics?” The answer is yes. You can always get a simple will. This does not mean it will do what you intend it to. Similarly, you can also get a “simple” power of attorney. This is just what one woman did in Chicago several years ago.
Background
An elderly widow had a daughter who passed and a granddaughter who she helped raise. She also had another daughter by a much earlier marriage who she barely new. The widow had amassed net assets approaching $10 million. One day, she took her granddaughter to a local office supply store and purchased a will and two powers of attorney “in a box.” The packet was a CD-rom that contained several basic templates that could “customize” one’s estate plan, or so said the box. The granddaughter carefully filled in the blanks and answered the questions, the form fields were populated, and presto: Powers of attorney!
Things went terribly wrong
For about 4 years, the granddaughter took wonderful care of the elderly widow. She cooked for her, bathed her, took her to doctors’ appointments, and was by all accounts a terrific caregiver. The widow began suffering from severe dementia and reached a point where she could not even recall the names of her own family members. The daughter by a prior marriage came one evening and picked her up while the granddaughter was away. She took her to her own home and filed a guardianship case, asking a court to give her full authority to make health care and financial decisions.
Expensive Litigation
Immediately, the granddaughter filed a request that the court deny the guardianship. Her reason? There was already a perfectly valid set of powers of attorney. Upon review, the court found that the powers of attorney were “patently” invalid. On the third page of the powers of attorney, there were long disclaimers about New Jersey and California law that had no applicability to Illinois. Likewise, there were certain powers granted that Illinois law does not permit. Finally, although there were 2 witnesses – one more than even required under the law. There was one fatal flaw, however. One of the witnesses was the granddaughter. Under Illinois law, this made it invalid.
While the box indicated that “Illinois attorneys” created them. Yet, no attorney actually handled the execution of the documents. At the time of signing, the granddaughter failed to understand the nuance of state law. Since the documents were found invalid, a 2-year guardianship battle ensued, tearing the family apart and involving countless hours of in-court litigation. The granddaughter had to testify against her own aunt and vice versa.
Result
In the end, the parties spent over of $140,000 fighting over the estate, the court appointed one person to handle the finances and the other to manage health care concerns. A court-appointed guardian ad litem was awarded $35,000 in attorney fees for his involvement, and the case involved 3 separate trials – one to invalidate the documents, one to decide who should be appointed guardian, and one to decide the award of fees to 5 attorneys involved.
Moral of the Story
A penny saved is a dollar lost when it comes to DIY estate planning without the help of a knowledgeable attorney.