Avoiding Personal Property Fights

While we value our client's privacy and would hate to have any of their affairs end up as a news story, there are lessons that are better learned by observing others than by experiencing them ourselves. With that in mind today's blog addresses an all to common problem that arises even when an estate does not contain an Oscar statuette. 

A current news story about the actor and comedian Robin Williams's estate is a clear example of why complete estate planning is necessary. The comedian's wife, Susan, and children  Zachary, Zelda and Cody are fighting over his estate, specifically personal property. Susan, married to Williams for three years, is claiming personal items that the children argue were to be given to them.

The dispute centers around two houses owned by Robin Williams at the time of his death. Williams' Trust grants Susan one residence and its contents upon his death, but there is another clause that says that his children get all of his "clothing, jewelry, personal photos taken prior to his marriage to his current wife,... memorabilia and awards in the entertainment industry and the tangible personal property located in Napa."  The wife is asking the court to define "memorabilia" to exclude Williams' collections , including Japanese anime figurines, antique weapons, carved boxes, theater masked, rare books, lapel pins, fossils, graphic novels and skulls, which the children are claiming. 

While Robin Williams carefully thought out his estate planning to protect all of his loved ones, he, like many others, failed to specify in detail personal property bequests. This can lead at a minimum to hurt feelings and can escalate into significant family disharmony and tear families apart.

Rather than leaving personal property bequests to the interpretation of various beneficiaries or the courts, it makes more sense to specify personal property bequests in a "Personal Property Memorandum", coordinated with the client's Living Trust, detailing specific beneficiaries for various personal items including, artwork, collections, specific pieces of jewelry, and any other personal property. 

We all have the ability to prevent family squabbles over personal property, whether of great value or sentimental value. Why leave it to others, including the courts, to guess or argue about how we really wanted our personal property to be distributed.

How do Powers of Attorney and Patient Advocate Designations Fit into an Estate Plan?

While people generally understand that a Power of Attorney and Patient Advocate Designations protect them if they become incapacitated, many people are confused about how these documents work and what their designees are obligated to do.

     Often, after signing their estate plan documents, our clients will ask, "now that I have a Durable Power Of Attorney and Patient Advocate Designation, what does my designated person have to do?” The simplest answer is they do not need do anything, nor can they do anything unless and until the client is declared incapacitated under the definition normally set forth in the document. The definition we use in our documents requires that two doctors certify in writing that the client is unable to care for his or her "financial or physical well-being". Once the designated person obtains those certifications, only then are they authorized to act on behalf of the incapacitated client. Upon obtaining the authority to act, the designees gain the authority and responsibility to make decisions that are in the client’s best interest.

     Under the Durable Power of Attorney, the designee should determine the assets of the incapacitated person and take action to protect those assets. This may include such actions as meeting with an investment advisor to ensure the assets are properly invested, paying bills, maintaining the house or other real estate, and making sure the incapacitated person receives care. While performing these tasks, the designated person should also keep complete financial records to show what actions they took and how they spent funds. In the course of the designee’s actions, any party shown the Durable Power of Attorney can rely on the fact that the designated person has authority to act with respect to all of the legal decisions the incapacitated person might otherwise have been able to make. 

     The person designated under the Patient Advocate Designation has the authority to make any necessary medical decisions, including treatment, selection of doctors and facilities, rehabilitation, and decisions regarding end-of-life care. We recommend that clients discuss what care he or she wants or does not want with their designees so that those people are better able to make decisions should the time come. Often, a Living Will is executed in conjunction with the Patient Advocate Designation as a declaration of those desires, especially of the intent not to be kept alive by heroic measures if it would merely artificially prolong the dying process.

     The responsibility given to another person under a Power of Attorney or Patient Advocate Designation is significant and should not be taken lightly. However the designee does not need to handle matters alone, they are allowed to employ professional advisors to assist them in caring for the client’s interests. As we always tell our clients, if it ever comes time for your designees to act, we will be there for them just like we are here for you.