People often expect me to just take their directions and create their documents. This is not an unreasonable expectation. However, it is important to me to create the best documents I can for you. Often, that means taking the time to explain each document, and make sure that it reflects what you actually want.
I have had clients come into my office with documents that were obviously not thought through by the person who signed them.. The worst instance was a person who brought in the trust his mother had set up more than 5 years before.
He had thought the trust would protect her house against a Medicaid lien. I was surprised and saddened, as I reviewed the document, to find that it was a completely revocable trust. Property in a revocable trust can actually prevent you from qualifying for Medicaid to pay for a nursing home. Medicaid regards property in a revocable trust as available to pay for care. The house would have to be removed from the trust for her to qualify for Medicaid.
The young man remembered that the attorney had asked his mother whether she wanted to have control over her assets. She said yes, she wanted to have control. The attorney failed to help her, or her son, understand that you cannot both protect and completely control the same asset using a trust you sign yourself.. There is a type of trust that can protect, for instance, your house. But that type of trust must limit your access to the equity, your control.
In another instance, I was surprised to find that my client’s parents had named my client’s husband, their son-in-law, as successor trustee to handle things after their death. Whether her parents had really meant to do this, I don’t know. But my client was sure it was the lawyer’s idea. We fixed it, but it was a bit of a nuisance. I suspect that if the lawyer had taken a bit more time to understand the family relationships, the document would have read differently.
I have found, through experience, that the best way to help my clients make the right decisions, and to make sure that I have understood their instructions correctly, is to give us both time. That is why we will have several meetings, taking the documents in small groups.
We start with health care, and then move on to powers of attorney, trusts, wills, and finally “funding” – ensuring that the property is titled correctly, and that beneficiaries reflect their wishes. This allows us to correct errors, and for my clients to “sleep on” their decisions. I am convinced that this results in the best, and most effective, estate planning.