- Written by Jonathan J. David Jonathan J. David
Dear Jonathan: I am single. A few years ago I engaged in estate planning. The documents I prepared included a will, financial and healthcare durable powers of attorney, and a trust.
I only have one sibling, my sister, and I named her as my fiduciary in every document — the executor of my will, my agent under my financial durable power of attorney, my patient advocate under my healthcare durable power of attorney, and the trustee of my trust when I am no longer able to act.
She recently had a health scare and spent some time in the hospital, which made me wonder what would happen if she were unable to act as my fiduciary, either because she died before me or due to health issues. What would happen in that event?
Jonathan says: You would have a problem. Regardless of the reason, if your sister is unable (or unwilling) to act as your fiduciary, your financial and healthcare durable powers of attorney would be rendered useless if you ever suffer a disability and are unable to act for yourself.
In this event, the only way someone would be able to act for you is if they petitioned the probate court (or the appropriate court, which has jurisdiction over these matters in the county where you live) to be appointed your guardian and conservator.
Regarding your will, the probate court would need to appoint an executor if you have an estate that needs to be probated.
Regarding your trust, a successor trustee would need to be appointed in the manner your trust requires. Sometimes a trust will allow the trust beneficiaries to appoint a successor trustee without seeking court approval; other times, the trust will require the beneficiaries to seek court approval for the appointment of a successor trustee.
Unfortunately, this is the risk you run when you don’t name enough backup fiduciaries in your estate planning documents.
The good news is you can update your documents now to avoid this from happening in the future. When doing so, I suggest you name at least two backup fiduciaries to make sure you have someone available to act when called upon to do so. Good luck.
Dear Jonathan: I recently updated my estate planning documents, and something occurred to me that did not occur to me at the time I was having those documents prepared.
I named my brother as my patient advocate under my healthcare durable power of attorney. In that document, I gave him authority to make any and all decisions regarding my medical needs and personal health.
My question is: When does his authority to act begin?
This may be an extreme example, but if my physician recommends I have surgery, and I decide after careful consideration not to follow his advice, can my brother overrule my decision and force me to have that surgery because I have named him as my patient advocate?
In other words, can my brother overrule my decision making? I just need to be clear as to what rights I have forfeited and what rights I have going forward.
Jonathan says: You have not forfeited any of your rights. So long as you have legal capacity and are competent to make your own healthcare decisions, your brother has no authority to act on your behalf and cannot overrule your decisions.
Your brother’s authority to act only begins after it has been determined you no longer have the ability to make your own medical and healthcare decisions.
So in the case of the example you provided, until that determination has been made, you get to decide whether to have that surgery, and your brother does not have the authority to overrule your decision.
If you have further questions, I suggest you talk to the attorney who prepared your power of attorney. He or she can review with you the procedure that must be followed for an incapacity determination to be made, which would trigger your brother’s right to begin acting on your behalf under that instrument. Good luck.
Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., 1700 E. Beltline N.E., Grand Rapids, MI 49525.