I do a bunch of estate planning here at the Jacobson Law Firm, and when I tell people what I do, most think wills, powers of attorney (POAs), living wills, trusts, etc., in case (in case?) they die or are incapacitated. All that is true; however, there's one document a lot of parents and grandparents don't think about until it's too late: a POA In Loco Parentis. It does seem like you're giving somebody the power to act like a crazy parent, but although as a practical matter you might do that, it actually means "in the place of a parent".
Hypothetically, your kids ask your wife if she will come watch your grandchild, Apple-Of-Her-Eye, for a week while they go on a cruise. Said grandmother - we'll call her GiGi - agrees, and heads off to Salt Cellar, Texas to entertain the little guy. You, being - I dunno, maybe an estate planning lawyer - stay home and work. Right before the newly liberated mom and hubby head off for their adventure, you get a text message from GiGi asking what happens if AOHE gets sick and she has to take him to the doctor. It is at this point that the "cobbler's children have no shoes" meme starts playing in your head and you ask yourself, "Why the heck didn't I think about doing a POA In Loco Parentis before now?!"
The POA-ILP (don't use that in front of a lawyer, I just made it up) authorizes the named person to do any act that a parent could legally do on behalf of the parent's minor child. It can cover everything from medical care to registering for school to giving consent for field trips, etc., and it gives both the parents and the POA-ILP holder a great sense of relief and security that while the parents are unavailable, somebody's able to watch out for the minor's best interests. There's no need to say why the parents are out of pocket. It can be for as long or as short a period as necessary or convenient (well, when the minor turns 18 it terminates). Caveat: it must be signed in front of a notary and should ideally have both parents' signatures on it.
By the way, everything in our hypothetical turns out okay, but remember - not doing a POA-ILP CAN result in somebody acting "like a crazy parent". Bad thing. Don't do it.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you find yourself needing to have somebody take care of your tyke or tykes, please contact an experienced estate planning lawyer and discuss your needs. But don't ask him/her if he/she has ever forgotten to do one for his/her own kids...
"Here's a stupid question..." - I hear this too often from my business clients. At the Jacobson Law Firm, we've helped form hundreds of business entities and we serve as Registered Agent for many of them. This means that I get to break the bad news when one of those businesses gets sued, but it also means I get to spend time getting to know about my clients' businesses - what's important to them and their employees, what they want out of being a business owner, how they care for their families, what sort of succession plans they've made. I love this part of the practice, because it tracks with our motto: "Helping People For Life".
One thing I never get tired of saying is that there are lots of ignorant questions when it comes to running a business and doing your estate planning, but there are no "stupid questions". A lot of this stuff is non-intuitive, meaning there's no reason the client should know the answer, so why not ask? I will also tell you that I would ALWAYS rather have a client call and say, "I'm considering doing x for my family/business - what do you think?", than have one call and say, "I just did y - that's okay, right?...".
Having a law practice is about building relationships. If your lawyer makes you feel stupid for asking a question, get another lawyer. A good lawyer wants nothing more than to have clients understand what's happening with their matter, be able to participate in decision-making, feel as though their concerns have been heard - and tell their family and friends, "I have a great lawyer - give him/her a call."
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you have questions about your business, contact an experienced business lawyer and ASK. And if you're a small business owner, it's doubly important that you have a lawyer who will integrate your business succession plan with your estate planning.
Over the 32 years of the Jacobson Law Firm's existence, we have prepared thousands of advance directives, a term that includes financial powers of attorney (FPOAs), medical powers of attorney, directives to physicians and other documents which are often designed to activate when the client isn't able to speak for himself/herself. A client chooses whether the (FPOA) will be effective immediately or only "upon my disability or incapacity". If the client chooses the latter, in order for the designated agent to be able to act under the FPOA, a physician will have to say that person is disabled or incapacitated to such an extent that the person can't manage his/her own financial affairs. Sounds pretty straightforward, right? Well, normally...
Recently, the children of a long-time client contacted us to say he had just had a massive stroke, could not move most of his right side and could not speak, and they needed to implement his FPOA so they could take care of his bills, etc. We prepared a statement for the treating physician at the hospital to sign, stating that he was incapacitated and couldn't manage his financial affairs. The physician refused to sign the statement. The kids then asked the physician at the rehab center to which their dad had been transferred, who likewise refused to certify that this person who cannot move or speak was "incapacitated". What to do?
Well, we figured that if his doctors say he's not incapacitated, he can execute a new FPOA that gives his kids the immediate authority to act on his behalf. The challenge was how to get him to sign the new FPOA. In Texas, any adult can execute a document by "making his mark" on it. In frontier days, when a lot of people couldn't read or write, "making one's mark" was a way for an illiterate adult to sign legal documents. We asked his children whether he could hold a pen, and they affirmed that he was nominally able to hold a pen. So, we prepared a new FPOA, the kids explained to him what he was doing, and had him make his mark on it, with two witnesses and a notary signing as well. It's a very small, indecipherable mark, but so far, nobody has refused to accept this FPOA. There is, as they say, more than one way to skin a cat.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you need more information on advance directives, please contact an experienced Estate Planning attorney to discuss your particular circumstances.
Musings, observations, the occasional whineage and some funny stuff.