Oklahoma Bar Association - Bar Journal

Authors: Phyllis J. Bryce and Cara C. Wells Published: Oklahoma Bar Association - Bar Journal (79 OBJ 2199) Comparing and Contrasting a Guardianship with the Durable Power of Attorney Document in the Event of Incapacity. The article explains the difference between a Guardianship and a Durable Power of Attorney and examines the pros and cons of each. Please click on the title to be redirected to the full article.

How to Avoid a Guardianship Action Article

How to Avoid a Guardianship Action by Cara Collinson Wells and Lori Warner Kingston published in the Winter 2010 edition of Treasures by Saint Simeons. *Click on the Article Title to be redirected to the full article.

The Importance of Estate Planning Documents

Saint Simeons Foundation Treasures Article written by Cara Collinson Wells and Phyllis J. Bryce: The Importance of Estate Planning Documents



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10 Reasons to Create an Estate Plan NOW

Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don't have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.

1. Loss of Capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that pers (through a power of attorney).


2. Minor Children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice.


3. Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state's laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.


4. Blended Families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and to the children from a prior marriage or marriages.


5. Children with Special Needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eleigible for government benefits while using the trust assets to pay for non-covered expenses.


6. Keeping Assets in the Family. Would you prefer that your assets stay in your own family? Without a plan, your child's spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensure that your assets will stay in your family and, for example, pass to your grandchildren.


7. Financial Security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.


8. Retirement Accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement accound funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.


9. Business Ownership. Do you own a business? Without a plan, you don't name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.


10. Avoiding Probate. Without a plan, your estate may be subject to delays and execess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.

For more information regarding establishing an estate plan, please call the Bryce Law Firm at 918-398-7528 for a free consultation.

Make Sure Your Legacy Includes Your Computer Password

Of all the secrets that we plan to take to our graves, a computer password should not be among them, according to an article in the Austin-American Statesman.

American are increasingly keeping vital financial information on their computers. After a death, it can be difficult or impossible for relatives to properly settle the deceased person's estate without access to password-protected computer files.

Retrieving a deceased person's password is cumbersome and costly, but not impossible, according to the article. Experts can be hired to break into password-protected files, but the going rate is $150 to $300 an hour. There are also software "decryption" programs designed to break passwords. But if decryption is done ineptly by an amateur, the process could destroy the very data the bereaved is seeking.

The article offers suggestions for keeping passwords secure during life yet available after that:

• Put a list of passwords in a safe deposit box. If you don't have a safe deposit box, leave the list with the lawyer who drafted your Will.
• Tell your executor and/or spouse your passwords.
• Write the list on a sheet of paper and place it in a folder with your will and power of attorney.
• Don't include the password in the actual text of a will. When the will is entered in probate, it becomes a public document. Your password will be out there for the world to see.
• Don't try to avoid the problem by using an obvious password, such as your birth date, child's birthdate or pet's name.
• Don't keep password lists in your computer.

Why Not Just Use an Off-the-Shelf Power of Attorney Form?

A durable power of attorney is one of the most important estate planning documents you can have. It allows you to appoint someone to act for you (your "agent" or "attorney-in-fact") if you become incapacitated. Without a power of attorney, your loved ones would not be able to make decisions for you or manage your finances without asking the Court to appoint a guardian or conservator, which is an expensive and time-consuming process.

There are many do-it-yourself power of attorney forms available; however, it is a good idea to have an attorney draft the form for you. There are many issues to consider and one size does not fit all.

The Agent's Powers

The power of attorney document sets out the agent's powers. Powers given to an agent typically include buying or selling property, managing a business, paying debts, investing money, engaging in legal proceedings, borrowing money, cashing checks, and collecting debts. They may also include the power to consent to medical treatment. Some powers will not be included unless they are specifically mentioned. This includes the power to make gifts and the power to designate beneficiaries of your insurance policies.

The power to make gifts of your money and property is a particularly important power. If you want to ensure your agent has the authority to do Medicaid planning on your behalf in the event you need to enter a nursing home, then the power of attorney must give the agent the power to modify trusts and make gifts. The wordking in a power of attorney can be significant, so it is necessary to consult an attorney.

Springing or Immediate

The power of attorney can take affect immediately or it can become effective only once you are disabled, called a "springing" power of attorney. While a springing power seems like a good idea, it can cause delays and extra expense because incapacity will need to be determined. If the power of attorney is springing, it is very important that the method for determining incapacity is clearly spelled out in the document.

Joint Agents

While it is possible to name more than one person as your agent, this can lead to confusion. If you do have more than one person named, you need to be clear whether both parties need to act together or whether they can each act independently. It might make more sense and be less confusing to name an alternative agent to act in case the first agent is unable to.

Appointing a Guardian

Another use of a power of attorney can be to nominate a guardian in case guardianship proceedings become necessary. Including your preference for a guardian can allow you to have some say over who will be managing your affairs. Usually, the court decides who will be chosen as a guardian, but in most circumstances, the Court will abide by your nomination in the durable power of attorney.

Executing the Power of Attorney

To be valid a power of attorney must be executed properly. Some states may require a signature, others may require the power of attorney to be notarized, and still others may require witnesses. It is important to consult with an estate planning attorney in your state to ensure your power of attorney is executed properly.

Accepting a Power of Attorney

Even if you do everything exactly right, some banks and other institutions are reluctant to accept a power of attorney. These institutions are afraid of a lawsuit if the power of attorney is no longer valid. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute the forms offered by the institutions with which you have accounts.

Bryce Law Firm Managing Partner - Phyllis J. Bryce

Phyllis J. Bryce - Managing Partner - Ms. Bryce received her Juris Doctorate from the University of Tulsa College of Law. During her studies, Ms. Bryce concentrated on and subsequently worked as a law clerk in the Older American Law Project at the Boesche Legal Clinic, University of Tulsa, College of Law. Her legal experience has focused predominantly on Estate Planning, Probate, Guardianship, Medicaid Planning and Elder Law. In 2005, Ms. Bryce opened the Bryce Law Firm, PLLC to provide these services to the Tulsa community. Prior to entering the legal profession, Ms. Bryce gained extensive experience in corporate business, having served in numerous management positions in the energy industry.

State Licenses: Oklahoma

Contact Information:

Telephone: 918-398-7528

Email: pbryce@brycelawfirm.com