A radio producer from Hype Media Global’s Community Central TV contacted me to request a radio interview about basic estate planning.  My first thought was WOW.  Not only was I gratified that I was “the chosen one,” but I also appreciated the opportunity to explain the importance of basic estate planning, along with reasons why many people choose not to avoid estate planning.  The radio program is entitled “Up Close and Personal with Debrina Washington.” Take a listen and let me know what you think.

You see, this week alone, 3 people that I either knew personally or knew of passed away, unexpectedly.  Causes range from a sudden heart attack to a seizure.  The surprising thing is all the recent deceased were under 40.

When you hear of young people who suddenly die, it begs the question “What happened”? Hey, I’m sure if the dead could speak, the deceased might be wondering the exact same thing.  As younger people, we move in a sort of invincible way; a little like my little boy’s favorite superhero, “Bipperman” (Spiderman.) We take everyday for granted and we rarely think about tomorrow. We eat what we want,  we drink what we want, and we rarely make financial plans for the future, because hey, there’s always tomorrow.    Well tomorrow is not promised.  Today is the day to take better care of ourselves in every aspect of our lives.

Recently, I accidentally left my car lights on.  The next day I saw my neighbor, who told me he tried to reach me to tell me.  He then said “I hope you don’t mind my saying so, miss, but every time, I see you, you’re in a rush.” He then begged: “Please, slow down.” He’s right.  I’m practically always running from place to place to place and my mind is racing as fast as I am.

So, on Monday, I was exhausted and feeling slightly under the weather.  I decided life is too short.  So, I took the day off and laid on the couch all day. Best day I had in a long time.  So, my advice today to all, heed my neighbor’s advice and “Slow Down.”

Time and time again, I’ve heard single people say “I don’t have a large family or much property,  I don’t need an estate plan.”  I have to be honest, prior to the birth of my son, I thought the exact same way.  Admittedly, it took me a year after my son’s birth to complete my estate plan.  Upon completion, I packaged it up nicely and told my close relatives of its contents and explained where exactly to locate my most important documents.  Then, I breathed a sigh of relief.  Why in the world did it take me so long?

Top Reasons Not to Have an Estate Plan

Well, for all of you naysayers, relax. You wont need an estate plan if:

1. You have no problem being buried next to your father and grandmother.  After all, your mom HAD to use that extra plot she purchased.

2. You have children and you’d rather the Surrogate’s Court decide how to distribute your assets amongst them and who will ultimately be responsible for rearing them.  Your irresponsible brother seems to be a perfectly appropriate guardian.

3. You love the thought of your irresponsible brother, your closest relative, in proximity, making life-changing decisions for you, such as whether the doctor should end life support or keep you on a feeding tube, should you find yourself in a comatose state.

4. That place that you worked so hard to buy.. Yeah, you’d like the Surrogate Court to decide what to do with it;  place it for sale or better yet, let your irresponsible brother move in.

5. You won’t mind that your new cherry red Mercedes Benz (or 1999 Honda Civic) will be sold, in the event of your untimely death, and the proceeds will be distributed to your creditors.

Conclusion

So, if you happen to be fine or even excited about the scenarios mentioned above, by all means, DO NOTHING.  However, if you’re mortified at the thought of having a zero percent say in an unfortunate future, please feel free to contact us and we’ll be happy to develop an estate plan for you.

If you managed to convince someone to watch your little ones, while you secure yourself some much needed adult time, first of all, Congrats!  Secondly, you should execute a temporary POA, which is effective for up to 6 months in New York.

What should you include

In the event of a medical emergency, specify all authorized forms of treatment, as well as treatments that are not authorized.  If your children are minors and school-aged, the POA will permit a temporary designee to make educational decisions.  Your temporary agent will need to present the POA to school officials or health care providers, upon request.

Single Parents

If a court of law has determined that both parents should equally share in the parental responsibilities including educational or health decisions, a temporary POA, in favor of another person will not be valid, unless both parents have consented to the temporary relationship.  NY GOL §5-1551.

Small Business Owners

You should execute a temporary POA to allow another person to make emergency financial decisions (i.e. bank account withdrawals) for your business,  during your absence.

Conclusion

Last piece of advice parents, RELAX! Your little darlings are probably doing whatever their little hearts desire.  That’s right folks, that includes jumping on furniture, eating loads of candy, staying up late… you get the picture. Regardless, it’s a small price to pay for a little piece of mind.  Ahhh, a girl can always dream.

In conjunction with the amendments to the New York Power of Attorney, effective as of September 1st 2009, previously discussed in detail here, the New York State government enacted a mechanism for a principal to grant an agent the power to transfer gifts to a beneficiary. The New Power of Attorney controls the handling of the principal’s general affairs, while the Statutory Major Gifts Rider (SMGR) will govern the agent’s ability to gift the principal’s assets during the principal’s lifetime. The provisions governing the SMGR are set forth in NY G.O.L. §5-1514.     

Summary of the SMGR Provisions

The SMGR requires a principal to execute a separate addendum to the New York Power or Attorney, permitting an agent to transfer major gifts to spouses, children, distant descendants or gifts to other beneficiaries.  In addition to the power to make gifts, the SMGR may also empower an agent to change or create rights of survivorship or add a beneficiary designation.  Lastly, the principal is also able to give the agent the power to grant a gift to himself/herself. 

Divorce and the SMGR

If two people divorce, the marriage is annulled, dissolved or otherwise invalidated, the agent loses the ability to make a gift to a former spouse under the SMGR.  However, if the principal decides to remarry a former spouse, the agent will be re-empowered to make a major gift to the spouse.

Conclusion

The SMGR must be signed, notarized and witnessed by two disinterested people (those that do not stand to benefit from a principal’s gift).  The principal must execute the SMGR and the New Power of Attorney simultaneously.   The method of execution for a SMGR is similar to that of executing a will.  Should you require any further information about the new Power of Attorney or the Statutory Major Gifts Rider, please contact us.

On September 1st, 2009, an amended New York Power of Attorney (POA) law became effective.   The new “durable” (form remains in effect, even in the event of incapacity) POA places additional requirements on both the principal and the agent.   In fact, the agent is required to sign and date the POA along with the principal’s signature and date.  NY General Obligations Law Section 5-1501A. It has yet to be determined whether the agent and principal need to occur simultaneously.

Contract Signing

New POA and Single Parents

So, the real issue is why should single parents care? That’s easy.  As single parents, we might have given a POA to an ex-spouse.  Note: If you’ve granted a POA for yourself to an ex-spouse, effective July 7th, 2008, the POA was automatically revoked after divorce under EPTL 5-1.4.  Therefore, you should executea a new POA, immediately. 

It’s perfectly natural for married couples to execute POAs in favor of each other.  But, as single parents, that option is not available for us.  Single parents might name a parent, sibling or an older child.  Some considerations might be the age of a child or a parent.  I love my mother dearly, but, let’s face it, she’s aging.  I might want to consider someone a little closer to my own age.  Also, if you decide to choose your child, consider the child’s maturity along with his/her age.  The law states that an agent must have “capacity” which means that an agent must comprehend the ability to revoke, execute, amend or modify the POA.  NY General Obligations Law 5-1501.  Personally, my little guy is too young to consider signing anything besides the walls (my little Picasso!) But, in about 15 years, he might be a great option.

You should consider the factors mentioned and many others when executing a New POA under New York Law.  Should you have additional questions, please feel free to register on our site and we’ll be happy to help.

Stay Tuned for Part II: Statutory Major Gifts Rider (”SMGR”).

Religious Affiliation- I mean I don’t go to Church often, but I certainly watch Joel Osteen every Sunday and then I turn up the Tunes and listen to a little Gospel on my way to the grocery store. Everyone experiences spirituality differently. But, if something were to happen to me, I would want Baby J to be raised by someone with the same or similar religious affiliation as me.

Family Make-Up:

Does your guardian have children, a significant other or pets? Although, I would be fine with a family who had a mom and dad because after all, my baby has a very close relationship with both parents, my child is allergic to everything, but air. Stress aggravates his allergies. I wouldn’t want him to be faced with complete culture shock by tossing him into a family that has A LOT going on versus our mostly-quiet home. Pets would probably drive him crazy. He would probably attempt to smack the dog or cat and he’d sneeze constantly. No guardian with pets for sure for me.

Career Choice:

If J could completely formulate thoughts and ideas, he’d probably prefer to live with someone who didn’t have a 5 year plan to change the world, such as myself. I’m always busy and sometimes, my little guy gets a little shorted on time because of it. But, don’t cry for him because I make up for it, by being over the top with him, every single chance I get.

I’d love for J to be raised by someone who could strike a real balance in life, between their personal and professional lives. His guardian wouldn’t be able to have a career where they travel often and if they had to travel at times, I would expect for J to go along.

J’s guardian would have to have flexibility at work because unfortunately, he gets sick often and requires a lot of doctor’s appointments, not to mention the fact that, not unlike his mother, he’s over the top at times and requires lots of personal attention. J can’t live with a workaholic.

There are lots of other considerations to contemplate when choosing a guardian. This blog post just scratches the surface. I plan to revisit this important topic in the future. Please feel free to add a comment and tell me about the other things you’ve considered when appointing legal guardians for your children.

The journey of choosing a guardian seemed as familiar to me as the journey of choosing appropriate godparents for my son. There were plenty of times I forgot all about it and moved on to something else because seriously, who wants to think about leaving their child. I thought about my friends and family being in different stations of their life. Some have kids and husbands, others have kids and no husbands, others have no kids and no husbands, and then others are just a hot mess. But I digress.

I recently had the pleasure of viewing Alexis Martin Neely’s video clip entitled “Choosing Guardians for Your Kids,” from her website Wear Clean Underwear Book. Alexis mentioned that parents should appoint a temporary (interim) guardian who lives within 20 minutes of your home, to allow time for a permanent guardian to get to the children. I discussed Alexis’ advice with several of my friends and the biggest question raised regarding temporary guardianship was:

What if I don’t know someone I trust who lives within 20 minutes of me?

This is an important question. You see, for me, it wasn’t an option to move away from my family. I mean, it wasn’t an option. My family lives within a 1 mile radius of each other and it’s accepted that even moving to another borough will be unacceptable with my Grandmother, the matriarch of the family. Nevertheless, others do not have the same family pressure, so they’ve made the brave decision that I’m too chicken to do.

So my best advice is to find someone you trust who lives close by, with the mindset that this person will not be able to make any financial decisions for you or your child (unless you say so.) Consider your child’s classmate’s family, Sunday school teacher, or just a really nice neighbor. Also designate more than one temporary guardian, just in case the other predeceases you, moves or becomes unavailable for some other reason.