By Attorney James A. Spella, Schloemer Law Firm, S.C.
Clients often ask how often they should update their estate plan. If there are any major life occurrences (death, marriage, divorce, disability, health concerns), an estate plan should be reviewed immediately. As time marches on and life changes, estate plans should also evolve and be updated.
When a couple is young and has children, their planning concern is primarily for each other and their children. In planning, they generally will appoint each other to act on their behalf during a lifetime incapacity or death, with an alternate hopefully designated. They will also appoint a guardian for their children in their Wills.
As couples get older, and their children graduate from high school and move on in life either with additional education, jobs, and marriages, those initial designations may not continue to be appropriate. Many times, after each other, the couple will designate one or more of their adult children as successor agents under their documents.
There comes a point in time, reluctant to accept, that couples must address their personal mortality, difficulties in mobility, health concerns, and yes, competency concerns. Accordingly, at some point in time to be determined by each couple, they should consider not only designating each other as the agent under their Durable Power of Attorney, but also a co-agent. The co-agent many times is one or more of their children. As co-agents, the children would be able to act independently of the parent/principal.
Why are co-agents better than successor agents? Financial institutions, insurance companies and others that couples will need to interact with as to finances and related matters, will many times not recognize physician letters indicating incapacity as sufficient proof for the alternate agent to become a successor agent. These institutions certainly have the right to have their own policies to protect their customers, especially in a world fraught with fraud.
Accordingly, to allow a child to act on behalf of a parent, it is recommended that the child be elevated from a successor agent to a co-agent. The child should be in effect elevated from the “on-deck circle” to the “batter’s box”. By having the child as a recognized co-agent, then there need be no proof of incapacity of the principal/parent for the child to act.
The use of elevating one or more individuals to be a co-agent under a Durable Power of Attorney also is appropriate as to planning based on a Living Trust. In a Living Trust, the child or children would be elevated as Co-Trustees, again eliminating the burdensome proof of incapacity.
The elevation to co-agents and Co-Trustees benefits the parents and allows the designated co-agents and Co-Trustees to act efficiently on behalf of their parents. This planning opportunity should not be overlooked as time marches on.
If you have any questions about this article, please contact one of our estate planning attorneys at 262-334-3471 or [email protected]
Originally published: June 12, 2019.
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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].