Q: Last week, I visited my 88-year-old great uncle in Everett, and he asked me to look at his will and other papers. He's a delightful man...
Q: Last week, I visited my 88-year-old great uncle in Everett, and he asked me to look at his will and other papers.
He’s a delightful man with whom I keep in touch via occasional phone calls and visits. I’m an attorney in Oregon but have little knowledge of estate planning. I was shocked to see that my uncle’s will was prepared not by an attorney, but by an “administrator” who is a friend of my uncle’s main beneficiary, his caregiver at the assisted-living facility where he lives. Upon my uncle’s death, this caregiver will receive $100,000 and a stock transfer of $60,000. Another document he showed me will transfer $500,000 in retirement assets to my uncle’s sister upon his death. The caregiver wasn’t involved in this arrangement, but my uncle is concerned he’ll find out and take the money that’s supposed to go to the sister. This caregiver also has my uncle’s durable power of attorney (DPOA). Isn’t it unethical for a caregiver to receive large sums from a client’s will?
A: I hope you will run, not walk, to protect your uncle from this apparent con artist. The circumstances you describe are a “disaster waiting to happen,” says Pat Sainsbury, chief deputy prosecuting attorney, Fraud Division, in King County. In the wrong hands, he said, a DPOA can be a license to steal.
First step, advised Jacob Menashe, an estate-planning attorney in Lynnwood, is to get your uncle to “drive the show” by seeing an attorney on his own to revoke the DPOA, sign a new one and write a will that reflects his wishes. Most attorneys will want to speak to your uncle alone. You could accompany him, but how much involvement you have will depend on your uncle’s wishes, as well as the attorney’s approach.
If your uncle balks at getting help, Menashe said, the facts appear dire enough for you to hire an attorney yourself and seek immediate relief through Superior Court. There are different ways to do this, such as filing a vulnerable-adult petition or guardianship petition. One way or another, what’s happening needs to see the light of day as soon as possible.
Sainsbury noted that he’s never heard of an “administrator” who writes wills, and he wonders whether the person who prepared your uncle’s will is practicing law without a license — a gross misdemeanor.
Second step: Tell the assisted-living facility where your uncle lives what the caregiver is doing. I’m sure its policies prohibit staff from receiving even $25 cash at Christmas, much less being named in a resident’s will. This caregiver’s behavior isn’t just unethical, it’s potentially illegal. It sounds as if he’s exploiting your uncle financially, and the facility will want to know. The facility is required to report suspected exploitation to Residential Care Services (800-562-6078), which is something you can do as well.
Q: Can you tell me how to find someone to be a personal representative and durable power of attorney? Sometimes banks do it, but I’d prefer to find an individual, a small firm or some such entity.
A: As the previous question amply demonstrates, giving someone power over your finances and health should you become mentally incapacitated (durable powers of attorneys) and your estate when you die (personal representative or executor) requires you to choose someone who’s squeaky clean — ethical, trustworthy and competent.
Preparing these documents ahead of time is essential; each of us needs to designate someone (or, preferably more than one person) to protect our interests when we’re least able. However, we need to judge their characters carefully.
The most common source of DPOAs and personal representatives is family (spouses, adult children, nieces, grandchildren) and friends. However, many people today have no family, and some have few friends or can’t count on the ones they have to do the job right.
One option is to designate a trustworthy younger person — a neighbor, a friend’s adult daughter or son or someone you know well and with whom you share a strong mutual affection. Another is to ask your attorney to recommend someone. “Usually I’ll refer to a professional guardianship service or individual who serves as a professional fiduciary and is bonded and insured,” says Michael Longyear, an estate-planning attorney in Seattle. Fees are related to the complexity of the work.
“Many people have no one to name to protect them, yet don’t realize it,” says Tom O’Brien, executive director of Guardianship Services of Seattle. If you name your husband or best friend, he says, that’s fine until you’re 80, and your spouse is, too. Or maybe your daughter lives in New York and your son has gambling problems — neither are good choices for having day-to-day control of your personal affairs and finances.
The Estate Planning Council of Seattle offers an excellent Web site on these topics specific to our state, plus publications. Go to www.epcseattle.org, then hit “Estate Planning Info,” or call 206-285-4066.
Liz Taylor’s column runs Mondays in the Northwest Life section. A specialist on aging and long-term care, she consults with individuals and teaches workshops on how to plan for one’s aging and aging parents. E-mail her at email@example.com or write to P.O. Box 11601, Bainbridge Island, WA 98110. You can see all of her columns at www.seattletimes.com/growingolder/.