Southwest Florida

Your Estate Planning Attorney is not a Family Counselor

Family counselor needed for dysfunctional family.
An estate planning attorney can’t solve a dysfunctional family’s problems.

Sadly, not every family gets along. As an estate planning attorney, I’m often faced with questions like “How can I stop litigious Child A from contesting my Will?, or “Child B made Mom revoke all of her estate planning documents because she didn’t like what they said,” or “I want to leave Child C more money than Child A and B, but I don’t want Child A and B to find out.” It’s gets even messier when “his kids” and “her kids” are involved: “We want one of his kids and one of my kids to be Co-Trustees, Co-Agents, Co-Executors, etc., because neither side trusts the other; this way they’ll have to agree to everything.” Yeah….that always works out so well…

Yes, as your estate planning attorney, I need to have a basic understanding of your family dynamics so I can advise you about your legal options. But I can’t solve your family problems and I certainly don’t want to be put in the middle of them. By the time you’re speaking with me, you should have a very good understanding of exactly who you want handling your financial affairs if you cannot (your Agent of your Durable Power of Attorney, Executor/PR of your Will, and Trustee of your Trust, if applicable) and who you want making your health care decisions for you when you cannot (Health Care Surrogate) – and a couple of backups if your first choice can’t serve for any reason.

Co-anythings are generally a terrible idea – it creates logistic problems and confusion. And, no matter what you say in your document about “only one signature is needed,” the person, company, or institution dealing with your Co-anything is likely going to require both signatures to cover their own butts. It’s even more fun when you require “all Co-Anythings must agree and sign;” it’s like expecting Democrats and Republicans in Congress to agree on something in a timely manner. We all know how well that works!

So, what do you do if your family is so dysfunctional that you can’t rely on everyone to work together? It depends. If YOU don’t trust anyone to act in your best interests, then resign yourself to hiring a professional to do it. Yes, it costs money, but if you can’t rely on your family to help you while you’re alive, why worry about leaving them anything when you die? The absolute worst thing I hear is “I only have one child. I don’t trust him, he’s stolen from me before and only calls me when he needs money, but he’s all I have so I’m going to name him as my helper for everything and as my sole beneficiary. I can’t afford to pay someone else to take care of me.” I know the chances are very good that this parent will eventually be exploited by her child, but she’s adamant about giving him every legal power Florida allows just so a “stranger” won’t be making decisions for her. So sad. Your estate planning attorney can give you the names of some professional fiduciaries to choose from if you have no one you trust.

Is there infighting and distrust between your children? Pick the one or two YOU trust the most (don’t worry about the petty sibling rivalries) and name them as your “helpers” – one after the other (not Co-anything). Leave your assets as you see fit – the person you named as your Executor or Trustee has a legal obligation to distribute your property as YOU documented in your Will or Trust – not as they wish.

Additionally, “estate planning by family committee” once you’ve engaged an estate planning attorney doesn’t work unless everyone involved is on the same page (what’s best for Mom and Dad?), everyone gets along (no sibling problems), and everyone is easily available for all meetings (no major time zone issues), is technologically savvy (can use Zoom or other web meeting software and knows how to scan and email documents), and responds very quickly to group emails.

Again, if Child B doesn’t trust Child A, whom Mom trusts and wants to name as her Agent, Executor, or Trustee, then including Child B in the planning will just waste everyone’s time and create more indecision and stress for Mom. If Dad wants to execute a Living Will, but Child C believes every measure available should be used to keep someone’s body alive, then, to avoid potential problems, Child C shouldn’t be named at all as a Health Care Surrogate or even as an Agent of the Durable Power of Attorney (because the Agent holds the purse strings for medical treatments).

As I tell every client, your estate planning documents only work if everyone involved is playing together nicely. In Florida, there’s no legal way to stop someone from contesting a Will or Trust – our judges believe everyone has a right to be heard in court, especially if there’s a possibility an elderly or otherwise vulnerable person was being coerced or unduly influenced by another person or family member.

If Child B is Mom’s Agent on her Durable Power of Attorney, and Child C knows that Child B is stealing from Mom, then Child C needs to call the police to report the theft. Then, if needed, Child C can contact an elder law attorney who specializes in elder abuse and exploitation litigation – or perhaps even a guardianship attorney. The point is that mere documents can’t stop evil people from doing evil things; so it’s better to just keep those people out of your documents completely.

Neither your estate planning attorney nor your estate planning documents can solve a dysfunctional family’s problems. So, eliminate the “problem people” from your estate planning process before you make that first call to an estate planning or elder law attorney.

Other articles you may find interesting:

Joint Account Warning … Again

Whose Estate Plan Is It, Anyway?

Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.

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