Secret Agent Man

The most famous agent in history is probably Bond -- James Bond -- Agent 007. Well, not in history, but, you know what I mean. Expert, resourceful, and deadly, he is everything that a good agent should be.

Except that, well, James Bond is kind of a terrible agent. That's because, regardless of how capable and effective an agent is, his first responsibility is to be faithful in carrying out the intentions of his principal. Yet, Bond, in addition to being an alcoholic womanizer, rarely feels constrained by the parameters of the mission he is given. If he gets sidetracked from the path he is assigned -- hey, this other thing is more interesting anyway. If a few extraneous people get gunned down -- they probably had it coming. That's why poor M is always having to get Bond out of hot water with the ministry or Parliament or whoever. 

While we may never work for Her Majesty's Secret Service, we've all had to appoint an agent at one time or another. It's usually an employee, whether it's the new VP of operations or it's that high school kid you hired to mow your lawn or watch your kids on date night. Or, it could be someone you ask to speak for you or represent you in a particular matter.

A big part of any estate plan is appointing agents to act for you when you can't -- either because you are incapacitated or because you are no longer with us. Executors, trustees, or agents appointed under a medical or durable power of attorney -- each is essential.

So, what makes for a good agent? To sum it up in one word, trust.

What sort of person is worthy of your trust? The prerequisite is that they are honest and will faithfully carry out the duties entrusted to them. In the law, we call this the duty of loyalty, and it's the first and most important duty owed by any fiduciary, including agents. This is where our friend Mr. Bond falls short -- not necessarily that he's dishonest, but more that he goes beyond the duties entrusted to him. You don't want an agent like this -- one who thinks he knows better than you and will do something even if he knows it's against your wishes.

But, simple loyalty is not enough. You also need competence. So, you could have, for example, a child that you believe would be entirely loyal to your wishes, but they may have no experience in dealing with financial matters. This would likely render them a poor choice as executor or as agent under a statutory power of attorney.

We'll look more closely at two kinds of agents next week: those appointed under the medical power of attorney and the statutory durable power of attorney. But, if you haven't taken care of your estate plan, don't wait! Hire a capable -- and loyal -- estate planning attorney today.

 

To Rage or Not to Rage, That Is the Question.

When his father was approaching death, Dylan Thomas wrote what became his most famous lines, pleading with his father to hold on as long as he could:

"Do not go gentle into that good night,/Old age should burn and rave at close of day;/Rage, rage against the dying of the light."

What does Thomas's poem have to do with estate planning? Well, you may not have known this, but the law allows you to decide whether or not you would like to "go gentle into that good night" or to "rage against the dying of the light." The mechanism for doing this is the advanced directive or living will, and it's the first of the four key estate-planning documents we'll look at:

Is a "living will" different than a "will?"

Yes, very much so. Your will disposes of your property at death. Your living will decides whether or not you would like to be kept alive by artificial means if you are suffering a terminal illness. They are very different documents.

That's confusing.

It trips clients up all the time. I often am told by someone that they had a "living will" drawn up some years ago leaving everything to their wife. Well, no, that would be a will; a living will doesn't dispose of property. Or, it could be a living trust, which acts more like a will than a living will does. . . It . . .well, talk to an attorney to make sure you have the right documents.

So, what does a living will or directive do, again?

It allows you to decide, in writing, if you want to be kept alive by artificial means if you are suffering a terminal illness or, rather, if you want to be allowed to die as gently and painlessly as possible. To put it crudely, it tells your doctor and the hospital whether or not to "pull the plug" when the time comes.

Why is it so important?

It saves your family from having to make an impossibly difficult decision when the time comes. If they know your wishes, it will save them a lot of guilt and anguish in deciding to either let you die peacefully or to keep fighting to the bitter end. It's hard enough losing a loved one without having to make the call on whether or not to let them go.

When does it take effect?

You have to be both (1) incapacited, and (2) suffering either a terminal condition or an irreversible condition. Incapacitated means you can't make decisions for yourself; often it means you are comatose or otherwise non-responsive. A terminal condition is one that you will die from in six months even with available treatment. An irreversible condition is both incurable and leaves you unable to make decisions for yourself. All of this has to be certified in writing by your physician. Both are extreme conditions; so the directive will only take effect if you truly are at the end of life.

Does this have something to do with "death panels?"

No. This has nothing to do with "death panels." People have been using directives in Texas long before anyone came up with the term "death panels." It is designed to honor your wishes, not to short circuit them through your doctor or insurance company or anyone else. You should not be afraid to sign a directive.

What if I change my mind?

The directive only takes effect upon your incapacity, so, as long as you are conscious and capable of making decisions, you can instruct your physician as to your wishes, and, of course, you can always have a new directive drawn up to reflect that you've changed your mind.

Are there any situations where a directive is not honored?

Texas law will not give effect to a directive if you are diagnosed as pregnant.

Is there any special language required?

Not required, but strongly suggested. Chapter 166 of the Texas Health and Safety Code governs directives, and the suggested language for the directive appears in section 166.033. Though this language is not mandatory, most careful estate planners will adhere to it pretty closely, since it's the language that health care providers will be looking for when the time comes.

 

A Foursquare Estate Plan

I've always been a bit of a collector or connoisseur of unusual words. One of the great and terrible things about the English language is that there are usually a dozen different words to convey the same basic idea. For example, if you want to say that someone talks a lot, you can call them wordy, chatty, verbose, garrulous, loquacious, prolix, or a dozen other things.

What's more, though we think of these words as synonyms, they each have their own unique shade of meaning and the true artist of language knows exactly when to use which one. Verbose or prolix each have a mildly negative connotation, while garrulous or loquacious are more complimentary. Your droning political science professor is verbose, while your favorite uncle who holds court at Thanksgiving is loquacious.

I think these odd and unusual words are great, and I wish I could use them more without appearing pedantic. Why call someone a crybaby when you can say they are lachrymose? Is it a better burn to call someone chicken or pusillanimous? Will your sweetie be more impressed if you call her pretty or if you say she is resplendent?

One of my favorite old-time words is "foursquare." It means solid, unswerving, firm, steady. But it's more than that. It originally referred to a city or building so solid as to be unassailable, one built on an unshakable foundation of four secure cornerstones. Your local bank is safe; Fort Knox is foursquare.

An effective estate plan is foursquare. It records the client's wishes in unassailable language and efficiently carries out those wishes to the greatest extent the law will allow. 

And, just as a foursquare building has four solid corners, most estate plans are founded on four documents: the last will and testament, the statutory durable power of attorney, the medical power of attorney, and the directive to physicians or living will. 

In the next four weeks, I'll take a closer look at these four documents. But, if you have not yet taken care of your estate plan, or, if you have one but feel that it's less than secure, don't hesitate: contact a qualified attorney to shore up your estate plan today.

Carpe Diem!

Earlier this year, we lost the beloved actor Robin Williams. In the wake of his passing, fans took to the Internet and social media to discuss their favorite scenes from his films and how he impacted their lives. My thoughts immediately turned to one of my favorite scenes from my favorite movie of his -- Dead Poets Society.

If you haven't seen the film -- um, stop reading this blog post and go see Dead Poets Society. It's terrific. But, if you're not going do that, I'll give you a little background. Williams plays John Keating, a high school English teacher at a stuffy New England prep school (at least I assume it's New England. I'm not sure if they ever really say. I digress). Through teaching methods that are . . . unconventional to say the least, he challenges his students to think for themselves and explore who they are as individuals. I won't spoil the rest; just go see it already.

The scene that came to mind for me was the first day of Mr. Keating's class. He walks through the classroom whistling the 1812 Overture and promptly turns around and walks out the classroom door. As his students are looking at each other wondering what this crazy person is up to, he sticks his head back in the door and waves them out into the hallway to follow him. 

Once in the hallway, he shows them pictures of former students of the school from fifty or a hundred years ago. He points out to them that everyone in the picture is young, full of life and hope and dreams. Then he says something shocking to them -- all of these men are, in his words, now "fertilizing dandelions." They all grew old and died, and his students, young and full of life as they now are, will one day die, too.

He doesn't tell them this to be depressing or morbid. Instead, it is a call to action. The moral of the story is captured in a simple two-word mantra he teaches them -- carpe diem. Seize the day! Make the most of the time you have, and make your lives extraordinary.

If there is one message I want to get across to people it is this -- to seize the day. Life is brief and precious, and we are not guaranteed anything, so we should -- we must -- redeem every moment that we have.

What does this have to do with estate planning? Almost everyone, if you ask them, will agree that they need to have a will prepared and need to take care of their estate plan. But, for some reason, estate planning is something that we always place on the back burner. It is a classic quadrant two activity: it couldn't be more important, but it lacks urgency, so we let it slide.

Don't do that! Take just a little time out and seize the day -- this day -- and talk to a qualified attorney about your estate plan. You will be happy you did because you will be able to face whatever lies ahead knowing that you have seized the day taken care of things for you and your family.

Be Prepared!

Last year, my nephew earned the great honor of being named an Eagle Scout. As I attended his award ceremony, I thought about all the years of hard work by him, climbing through the ranks of scouting, all the while dedicated to the simple motto of the Boy Scouts -- be prepared. Whether camping, hiking, or canoeing, a good Boy Scout always thinks ahead, planning for any contingency, however remote.

While most of us may never learn to tie a decent bowline knot, we do try to act like a Boy Scout in being prepared for the contingencies of life. For example, most of us spend thousands of dollars every year, year after year, on home and auto insurance. Why? It's not because we need it every year. Fortunately, most years we don't total our vehicles or have our houses burn down. Yet, we prepare for those disasters even though there is less than a 10% chance of them happening in a given year.

If we prepare for these things that have such a remote chance of happening -- and we should -- shouldn't we also prepare for something that we absolutely know will happen? Yet, less than half of Americans have a proper estate plan to prepare for death or incapacity, even though having a qualified attorney prepare an estate plan usually costs only a fraction of what we pay every year for casualty insurance. 

Don't be a part of the unprepared majority! Contact a qualified attorney today to prepare your estate plan and provide your family peace of mind. I would love to meet with you today to discuss the next steps in providing you a customized estate plan so you can rest easy knowing that, like a good Boy Scout, you are prepared!