A DPOA grants named individual(s) the power to enact legal or financial transactions on behalf of another, depending on the specific authority delineated in the document. It is intended to authorize someone to handle the affairs of someone else, while living.
A Revocable Living Trust serves a different purpose; it provides for asset allocation and distribution to heirs as well as management of assets after death, and establishes terms similar to a Will but provides an alternate method of handling post-death distribution to heirs so that the processes don't need to be subjected to Probate Court involvement.
If the Trust is properly funded (and that's a major key) and assets are properly retitled and have been transferred to the Trust, then it should avoid Probate altogether. Some assets can also be held jointly with rights to the survivor, so they transfer automatically on death and don't need to be probated generally.
So a DPOA and Revocable Living Trust serve 2 different purposes. The DPOA doesn't address asset distribution or Probate Count involvement for distribution to heirs.
GardenArtist answered this perfectly. A DPOA is for while an individual is living. You wrote you are trying to avoid probate. See an elder care attorney to set up a Revocable Living Trust. Some attorneys --who are dumb or greedy--- will suggest that you only need a will.
You have to watch out attorneys. The elder care attorney wrote a trust in which he was the one who made the decisions about how to invest my mother's money .
GardenArtist is correct. I have drafted hundreds of DPOAs as well as revocable living trusts, and both are needed in many cases. But to avoid probate, there can be no assets titled in your sole name. Accounts that pass on death automatically, such as joint bank accounts or brokerage accounts with a POD designation, also avoid probate and are sometimes all that is needed.
It is a good idea to have both. I hope you will find an attorney dedicated to the practice of estate law. Along with the DPOA you should have medical directives or a medical POA in place as well. Your son may need to make medical decisions and you should make sure he knows your wishes and has the legal powers to easily help. As the kid who got the job of settling the estate, I was thankful my parents have one and I didn't have to deal with probate.
Every state has specific laws concerning both documents, so make sure what is produced covers where you reside, especially if might have multiple residences where you might stay/live part of the year. An elder law lawyer who handles estate law for your primary state and is certified as such is whom you need to see. You'll need both documents, as the other respondents advised in this post, and usually the Durable POA is incorporated into the Revocable Trust, as well as many other important documents. I'm in Florida and just a couple of years ago, the Durable Power of Attorney was updated legally by the State of FL to include more areas, including and incorporating laws pertaining to the Internet (banking particularly), so you need to also keep abreast through the lawyer you choose or write a tickler to review your documents every couple of years so you are thoroughly and always covered. Hopefully this helps!
Sascha, could you explain what you mean that "usually the Durable POA is incorporated into the Revocable Trust"? They're two separate documents, one for use before death and the other after death. How can a DPOA be incorporated into a Trust, or are you thinking that the powers granted in a DPOA are similar to those established in a Trust?
It's interesting that Florida has already addressed Internet issues; I've read that the issue of digital data ownership is one that is in fact being raised in estate management....i.e., which heirs inherit rights (and what are those rights) to digital data? It's an interesting question.
I think it would be more important if someone had published an article, had a website, or something of similar value as opposed to say, just a Facebook account, although given that FB has commoditized its users' data, there is in fact commercial value there.
Garden Artist and other commentators: Our elder law attorney included Mom's Durable POA, as well as her Health Surrogate, HIPPA, end-of-life decisions, and other docs, into her Revocable Living Trust, but the actual individual documents can act independently of the trust, too, since they are for her benefit presently, or in an interim state of decline, versus death. So I may have used the wrong word ("incorporated") but it is included in her estate planning portfolio. I am her DPOA (but I'm not a lawyer!!!), so everything is all in one place, which helps me to stay organized, as well as her Successor Trustee of the trust upon her death.
As far as digital content, the new DPOA in Florida does incorporate fiduciary transactions conducted online, as well as online accounts, estate transactions, social media, passwords, data, credit card accounts, online shopping, online investments, etc. There are also "special powers" provisions in Florida that can be granted, that a qualified elder estate lawyer explains to the person who is creating the DPOA for which they may wish to give to the designee.
As for your question of whom inherits the digital data, I believe that it is spelled out that upon her death, the DPOA relinquishes control to the Successor Trustee of the RLT, except for post-death matters allowed under Florida State Law.
We are just about to start another thorough review of her papers with another elder law estate attorney to get a "fresh" look at how everything reads and if there are any new conflicts or anything that needs to be changed or updated, while her cognizance is still good.
Because these documents are so personalized, I believe that you really need to find a qualified elder estate lawyer, with whom you feel comfortable and can communicate well, and has patience to understand and answer your questions.
One resource that the lawyer we are going to see had recommended very highly was a book titled, "A Will is Not Enough," by Amelia E. Pohl (disclaimer: I have no financial interest or otherwise in this book). She said that it really examined a lot of the issues that you need to think about in estate planning.
I think I see your point - the documents themselves aren't "incorporated by reference", a standard legal term, but rather are part of all the documents comprising an estate plan. That's typically the way it's handled by firms that do estate planning, and it makes sense if that's what you're referring to.
Thanks for the explanation.
As to the choice of an attorney, I was fortunate enough to work for some very qualified law firms, of which I chose one to handle our EP work, conferred with another I had worked for later but went back to the first one.
There's also a big difference between the silk stocking law firms and the more approachable mid size law firms that focus more on middle class estate planning issues.
I'm still pleased with them and their approach. The choice was fairly easy since I saw how they provided for clients from an "insider's perspective." There were 2 that I never would hire and wouldn't take their advice for free, and a third I was working for on a temp basis who fired me when I refused to white out a signature on a deed.
Are you sure you aren't in the legal field? Not too many people would add a disclaimer after referencing a book. Maybe you have some innate legal instincts!
A POA is no more once the person dies. I know a family that the daughter was POA for her Mom in Del. because the daughter lived in Del and Mom was in a home there. When the mother passed, the son became executor to the estate that was in NJ.
Garden Artist: I'm taking a wild guess, but is a "silk stocking" firm more of a smaller specialty firm that primarily caters to the wealthy? I've never heard the term, but it's probably inside jargon in the legal trade? I believe that's what we used first, which is why I really want a review by a more approachable firm that also deals with military backgrounds and middle-class incomes (and doesn't take normally at a 5000 word per minute rate, assuming that my brain can keep up! When I asked them to explain again but more slowly, they only dropped back to 4700 wpm, which really didn't help too much).
Thanks for the personal compliment, but, no, I have never been in the legal field. I just read a lot, and try to be EXTREMELY CAREFUL in all legal and medical matters, for Mom or myself. Since I usually wind up recommending books to friends, family, acquaintances, etc., I've just gotten into the practice of adding disclaimers when I make references to strangers.
Sascha, actually the "silk stocking" term refers to the larger, tonier firms with upper class clients, those of "high individual net worth" as they're described. These kinds of wealthy clients would be interested in Medicaid not from the perspective of families in financial straits, but rather as a plan of asset management to maximize one's portfolio value.
I've also heard the term "white shoe" firms used but that to me implies an even tonier law firm, old money type clients.
In the days when I first worked at these kinds of law firms, you wouldn't find any Jewish or black attorneys. All white, the WASPy kinds of law firms.
The firm's décor can be a clue. One in which I worked had a whole corridor of expensive paintings; it was like an art gallery.
Attorneys' behavior is properly in accordance with the tony atmosphere. These aren't firms at which an attorney would blow up, start swearing or yelling and slam a door (I've seen a few of those too).
Think in terms of the kind of firm a Kennedy might have as its law firm.
The smaller ones that focus on a specialty practice area, such as health care law, are often considered "boutique" firms. I suspect now that they're not so much a boutique law firm as health care law has expanded in scope, as have many other practice areas such as international law.
But you do show good insight into law firms!
I should add that this was about 10 years or so ago. I'm sure some of the boutiques have expanded to add some subspecialties, and new ones have been opened for other fields that have developed, such as media law, cyberlaw. I'd love to get into some of these newer fields, but alas, I am an oldster and I'm sure my white hair would cause the office managers in some of these up and coming fields to gasp in shock that someone my age could consider working as opposed to sitting in a rocking chair.
Since you're so interested in law, you might find it interesting to subscribe to some of the law firm newsletters. If so, PM me and I can make a few suggestions, including the one I prefer.
One must take extra precautions in assigning a DPOA as this automatically gives the signed person to take legal decisions on their behalf. Gaining confidence over any attorney,lawyer or law firm is hard but I would suggest you to consult to leemeierlaw as I found them very helpful.
A Revocable Living Trust serves a different purpose; it provides for asset allocation and distribution to heirs as well as management of assets after death, and establishes terms similar to a Will but provides an alternate method of handling post-death distribution to heirs so that the processes don't need to be subjected to Probate Court involvement.
If the Trust is properly funded (and that's a major key) and assets are properly retitled and have been transferred to the Trust, then it should avoid Probate altogether. Some assets can also be held jointly with rights to the survivor, so they transfer automatically on death and don't need to be probated generally.
So a DPOA and Revocable Living Trust serve 2 different purposes. The DPOA doesn't address asset distribution or Probate Count involvement for distribution to heirs.
It's interesting that Florida has already addressed Internet issues; I've read that the issue of digital data ownership is one that is in fact being raised in estate management....i.e., which heirs inherit rights (and what are those rights) to digital data? It's an interesting question.
I think it would be more important if someone had published an article, had a website, or something of similar value as opposed to say, just a Facebook account, although given that FB has commoditized its users' data, there is in fact commercial value there.
As far as digital content, the new DPOA in Florida does incorporate fiduciary transactions conducted online, as well as online accounts, estate transactions, social media, passwords, data, credit card accounts, online shopping, online investments, etc. There are also "special powers" provisions in Florida that can be granted, that a qualified elder estate lawyer explains to the person who is creating the DPOA for which they may wish to give to the designee.
As for your question of whom inherits the digital data, I believe that it is spelled out that upon her death, the DPOA relinquishes control to the Successor Trustee of the RLT, except for post-death matters allowed under Florida State Law.
We are just about to start another thorough review of her papers with another elder law estate attorney to get a "fresh" look at how everything reads and if there are any new conflicts or anything that needs to be changed or updated, while her cognizance is still good.
Because these documents are so personalized, I believe that you really need to find a qualified elder estate lawyer, with whom you feel comfortable and can communicate well, and has patience to understand and answer your questions.
One resource that the lawyer we are going to see had recommended very highly was a book titled, "A Will is Not Enough," by Amelia E. Pohl (disclaimer: I have no financial interest or otherwise in this book). She said that it really examined a lot of the issues that you need to think about in estate planning.
Thanks for the explanation.
As to the choice of an attorney, I was fortunate enough to work for some very qualified law firms, of which I chose one to handle our EP work, conferred with another I had worked for later but went back to the first one.
There's also a big difference between the silk stocking law firms and the more approachable mid size law firms that focus more on middle class estate planning issues.
I'm still pleased with them and their approach. The choice was fairly easy since I saw how they provided for clients from an "insider's perspective." There were 2 that I never would hire and wouldn't take their advice for free, and a third I was working for on a temp basis who fired me when I refused to white out a signature on a deed.
Are you sure you aren't in the legal field? Not too many people would add a disclaimer after referencing a book. Maybe you have some innate legal instincts!
Thanks for the personal compliment, but, no, I have never been in the legal field. I just read a lot, and try to be EXTREMELY CAREFUL in all legal and medical matters, for Mom or myself. Since I usually wind up recommending books to friends, family, acquaintances, etc., I've just gotten into the practice of adding disclaimers when I make references to strangers.
I've also heard the term "white shoe" firms used but that to me implies an even tonier law firm, old money type clients.
In the days when I first worked at these kinds of law firms, you wouldn't find any Jewish or black attorneys. All white, the WASPy kinds of law firms.
The firm's décor can be a clue. One in which I worked had a whole corridor of expensive paintings; it was like an art gallery.
Attorneys' behavior is properly in accordance with the tony atmosphere. These aren't firms at which an attorney would blow up, start swearing or yelling and slam a door (I've seen a few of those too).
Think in terms of the kind of firm a Kennedy might have as its law firm.
The smaller ones that focus on a specialty practice area, such as health care law, are often considered "boutique" firms. I suspect now that they're not so much a boutique law firm as health care law has expanded in scope, as have many other practice areas such as international law.
But you do show good insight into law firms!
I should add that this was about 10 years or so ago. I'm sure some of the boutiques have expanded to add some subspecialties, and new ones have been opened for other fields that have developed, such as media law, cyberlaw. I'd love to get into some of these newer fields, but alas, I am an oldster and I'm sure my white hair would cause the office managers in some of these up and coming fields to gasp in shock that someone my age could consider working as opposed to sitting in a rocking chair.
Since you're so interested in law, you might find it interesting to subscribe to some of the law firm newsletters. If so, PM me and I can make a few suggestions, including the one I prefer.
Nice chatting about the legal field again!