Astor Matter Reminds Us that Trustworthiness is Essential When Nominating Substitute Decision Makers

Lately, the matter of Brooke Astor’s estate has been covered in the media. Like many people she had an estate plan in place which included a Durable Power of Attorney and Health Care Proxy, which nominated subsituted decision makers in the event she would lose the capacity to make important financial and/or medical decisions at some point during her elder years. She did not want to burden her family with obtaining a Guardianship and/or Conservatorship through the courts. She did end up suffering from Alzheimer’s disease and her son took over her financial powers. He just didn’t do a very good job…

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated - and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so - as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”

The Value of a Health Care Proxy for Your College Student

Who do you know that is getting ready to go off to college this fall? Perhaps it’s your own child, a niece/nephew, grandchild, or son/daughter of a friend. Families will soon be shopping for bedding, mini-fridges, Easy Mac, and textbooks.  With the myriad of things to be done before the fall, I’ll bet you very few family “to-do” lists include a check off box for Get Junior a Health Care Proxy. This often overlooked necessity is something that should, at the very least, be considered.

When your child turns 18 they are a bona-fide adult and Mom and Dad cannot step in to make medical decisions for their now “adult” children. In Massachusetts, the only document legally recognized to name a substitute decision maker is a Health Care Proxy. However, the overwhelming majority of college students do not have a Health Care Proxy in place.

A Health Care Proxy names someone to make health care decisions for you in the event you are unable to do yourself. So, for example, let’s say that Sally comes down with a bad case of meningitis her freshman year. She deteriorates very quickly and ends up in a near-unconscious state, unable to make or communicate medical decisions. If she had a Health Care Proxy in place naming Mom, Dad, or older sister as her health care agent, they would be able to communicate with Sally’s treating physicians more completely and have legal authority over her health-related decisions.

What if Johnny has a tragic accident on the football field leaving him paralyzed from the neck down? On top of that the doctors say the outlook is grim if Johnny will ever regain mental functioning and is in a permanent, vegetative state on total life support. Without a Health Care Proxy in place, Johnny’s family won’t be allowed to decide the level of support he will receive. Johnny’s family may even be forced to go to the county Probate Court to get a legal guardianship and ask a judge to make any changes to Johnny’s treatment. Most students would rather have a trusted family member make this decision than a total stranger.

It may seem unnecessary to prepare health care documents for someone so young and healthy, unlikely to come down with serious illnesses. However, when accidents happen to young adults, their legal needs are not often protected and important decision can be left up to disinterested parties, limiting close family involvement.

This may be an unsavory topic to discuss with an 18 year old, but very important, especially if your child still wants Mom and Dad helping them handle their affairs until they get older or are married.