Managing Key Client Documents in the Modern Age

By Ruthann P. Lacey, P.C.
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May 24, 2016

Most people pride themselves on managing their lives and working hard so that they and their children can have better lives. They’re are busy people and choose to rely on professional financial advisors to help increase the value of their assets. ‘Let your money work for you’ says it all, right? So while the money is working for our clients, there are some major questions to ask on the client’s behalf and the all-important accompanying documentation.

What exactly are my client’s planning needs?

The planning community has had to rethink ideas on planning for aging clients. Planning is no longer based on age alone but the focus has changed to stage of life. Think – Janet Jackson… having her first child at 50. Individuals are commonly having children later in life, so schooling and college savings may actually be a priority for an “older-ish” client.

Individuals are also more concerned with aging in place, so paying a mortgage or having a reverse mortgage may be important for aging clients who are upgrading instead of downgrading their homes.

More traditional clients may be still be focused on investing for retirement – now retiring at a younger age – or they may focus planning on providing for future generations.

The client’s focus could be on any of these scenarios, but when a serious illness occurs it impacts their planning needs and changes the focus toward paying for long term care.

Client Documentation

Generally what are the basic documents clients should have in place?

Last Will and Testament: It is startling that as many as half of all adults do not have this most fundamental document in place when they die. Think – Prince….$300 million in assets with no Will?

Durable Financial Power of Attorney (DFPOA): While a Will determines what happens to the estate after death, a DFPOA controls how business and finances are handled while the client is alive – either at their direction or when they become incapacitated.

Durable Advance Directive for Health Care (DADHC): Is similar to the DFPOA in purpose, but its focus is health care decision making. This is the most personal document as it directs the client’s agent as to the physical care and the quality of life they desire.

Are there other documents for clients to consider having in place?

Health Records — Courtesy of the implementation of the Health Insurance Portability and Accountability Act (HIPAA) and the interpretation of the law by doctors, hospitals and other health care providers, it is difficult for family members to obtain information or medical records unless the provider has a signed HIPAA Authorization and Consent in hand.

Deeds — With or without Right of Survivorship depending on the desired purpose of the document and the planning needs dictated by the client’s circumstances.

Trusts — These come in many forms to achieve many different purposes depending on the desired purpose of the document according to the planning needs dictated by the circumstances surrounding the client’s situation. They are either Revocable or Irrevocable and might be called Spendthrift Trust; Settlement Protection Trust; Special Needs Trust – First Party or Third Party; Irrevocable Life Insurance Trust; Education Trust; or Bypass Trust, to name a few.

While this is obviously not an exhaustive list of documents that may benefit a client, it’s the key ones that clients ask about most often. And when it comes to documents, it isn’t all in the name:

For example, even if the Power of Attorney has “Durable” in the name it is not a Durable Power of Attorney unless the document contains the specific language to make it Durable.
A Last Will and Testament has state-specific legal requirements it must meet in order to be a legally enforceable document in that jurisdiction.
A Special Needs Trust must include required language, without which the client’s state Medicaid Agency will not approve the document for use as a Special Needs Trust.

Conclusion

When it comes to documents, their creation, intended purpose, and use, it’s best to defer to an experienced, knowledgeable practitioner to ensure the client reaches their intended planning goal.

Author Bio

Ruthann Lacey is an alumna of Trinity College and Emory University School of Law, is licensed to practice law in the State of Georgia and Washington, D.C., and is a Certified Elder Law Attorney. Her practice concentrates on planning for the unique and complex concerns of the elder population, and of children and adults with special needs. Ruthann is a member of the National Academy of Elder Law Attorneys (NAELA), the Special Needs Alliance, a charter member of the Council of Advanced Practitioners, and a member of the District of Columbia Bar, the Georgia Bar Association, and the Atlanta Bar Association. Ruthann has been selected as a “Super Lawyer” every year since 2006; was named one of the Top 50 Women Attorneys in Georgia in 2007, 2009, and 2010; and was included in the “Georgia Trend” selection of Georgia’s Top Attorneys in 2012, all based on surveys of her peers. Ms. Lacey has an AV rating in Martindale-Hubbell, and was included in the 2013 Martindale-Hubbell Bar Register of Preeminent Women Lawyers. Ruthann is past chair of the Elder Law Section of the Georgia Bar, serves on the Continuity of Law Practice Committee of the Georgia Bar, belongs to the Fiduciary Law Section of the Georgia Bar Association, and is a Life Fellow with the Lawyers Foundation of Georgia. She is a member of the Elder Law and Small Firm Sections of the Atlanta Bar Association. Ruthann belongs to the DeKalb Estate Planning Council, is a member of the board of Family Initiative Residences, Inc., and is actively involved with several volunteer and charitable organizations. She is a past Director of the National Elder Law Foundation. Ruthann is an active speaker on the local, state and national levels, to both professional and public groups and organizations. Recent engagements include serving as Program Chair for the fifteenth annual Institute of Continuing Legal Education in Georgia Special Needs Trust program; presenting at the 2015 Missouri NAELA Annual Elder Law Symposium; presenting at the 2015 Georgia Trial Lawyers Association Annual Convention; presenting with the ICLE Webinar Series; presenting at the 8th Annual Utah Elder Law, Estate Planning, and Medicaid Planning 2011 program; presenting at the 9th Annual Utah Elder Law, Estate Planning, and Medicaid Planning 2012 program; presenting at the Stetson University 2011 Special Needs Trusts - The National Conference; serving as a guest Professor of Law at John Marshall Law School; serving on the faculty of Southern Trust School; presenting at the NAELA Symposium and at NAELA Fundamentals Day; facilitating at the NAELA Advanced Practitioner’s Program; presenting to the Alabama Bar Institute for Continuing Legal Education; the Tennessee Bar Association; Medicaid Irrevocable Qualified Income Trust Training; The Coca-Cola Company; the Financial Planning Association; the Cobb County Bar Association Elder Law Section; Emory University's Senior University; Delta Employees Credit Union; the People’s Law School; the Atlanta Bar Association’s Legal Eagles CLE Series; the Atlanta Special Needs Trust Discussion Group; Georgia State University; the Joint Conference on Law and Aging; the Georgia Chapter of the Huntington’s Disease Society; Church groups; Civic groups; Alzheimer’s Support Groups; and AARP Chapters. She also has been an Instructor of Estates, Trusts and Wills and Legal Research at the National Center for Paralegal Training, has drafted Elder Law legislation for submission to the Georgia General Assembly, and is an editor and published writer. Among other accomplishments, Ruthann has been published in the Georgia Bar Journal, Family Law Quarterly (a publication of the American Bar Association), Georgia Probate Notes, Exceptional Parent, Money Matters, Inside Money, Senior News, and NAELA News, edited the Medicaid chapters in A Will is Not Enough in Georgia, contributed to The Complete Idiot’s Guide to Long-Term Care Planning, and The CPA’s Guide to Long-Term Care Planning, has appeared as a guest on the Clark Howard Show, the Layman’s Lawyer, Money Matters, Inside Money, People to People, Professional Review, and Atlanta Issues, has been mentioned in Consumers Digest, has been cited in Elder Care and Nursing Home Litigation in Georgia, and has been quoted in The Wall Street Journal, The Atlanta Journal - Constitution, The Family Connection, and the American Bar Association Journal.