Powers of attorney are one of the most important documents in your client’s estate plan, simply by virtue of the fact that they come into effect when your client is often at their most vulnerable – living, but lacking the ability to make decisions.
For estate planning lawyers, powers of attorney should not just be a precedent you fill out, rather, careful thought must go into drafting the provisions of the powers of attorney to safeguard the grantor’s financial and life circumstances.
Due diligence from the get go
There are an increasing number of disputes and litigation surrounding the making and granting of powers of attorney as well as the misuse and abuse of the same. Lawyers drafting POAs must do their due diligence from the get go.
What do I mean by this? When your client offers their suggestion as to their choice of attorney(s), take the time to discuss your client’s life circumstances. What is their family dynamic like? Who are the players?
Ask the difficult questions
One of the best ways to avoid a potential LawPro claim or litigation long after you have completed the file is to take the time during the initial client meeting is to talk to your client and take detailed notes. While you may feel like you are asking invasive questions, it is important for you to know the thinking behind your client’ intention for their choice of potential attorney.
For those of you who are drafting POAs on behalf of elderly clients, you should be aware of situations of elder abuse and protect those who may be vulnerable and susceptible to abuse and undue influence. Be cognizant of who is making the appointments to see you, is it an adult child of the grantor? Are the circumstances in which the potential client is seeking you for your services, urgent? As lawyers, we are not trained to undertake capacity assessments and sometimes the signs of incapacity are not at all obvious.
Your client's needs
Without properly drafted POA, there is often no chance to protect assets when planning is needed for long-term care. Money runs out quickly when a client needs to be placed into a nursing home. Even the best nursing homes do not provide everything a client may need to improve the comfort and quality of life of the client. As such, when drafting POAs, take the extra time to get to know your clients as powers of attorney have the ability to be life-changing documents.