Basic legal issues can be a problem

It has been a while since my last column. Now that hunting season and basketball are over here in Auburn, I have been out of the office a bit traveling around and visiting with some readers and working on their estate planning. What a blessing to get to know these people. Farmers are truly the backbone of America.

In this column, I'd like to share some experiences and worries that I have for all of you out there. In the next column, we will pick back up with some substantive matters. But for now, let's concentrate on some real down-to-earth issues that can really cause problems for your loved ones.

First of all, let me try to scare you into action in regards to having an up-to-date and comprehensive general power of attorney. The normal power of attorney is an instrument that a person (the “principal”) executes giving another (the “agent”) the authority to act on their behalf.

There are two kinds to consider. The first one is for making business decisions and executing documents on the behalf of the principal (the person giving the power). This is usually called a durable general power of attorney. It is authorized by state statutes to survive the incapacity of an individual so that the family and loved ones do not have to go to court when a loved one has developed Alzheimer's disease, has had a stroke, or experienced some other debilitating medical condition.

You can't imagine a more dire predicament than having to make business decisions for a loved one who has had a stroke or has had a bad accident. Without the power of attorney, you can count on going to court to obtain court authority through a judge awarding you letters of conservatorship or guardianship for the incapacitated loved one.

Besides being a tremendous hassle, this is very expensive. With the execution of a power of attorney, you can avoid this wasteful and needless scenario. Recently, we had a situation with a client who had executed a power of attorney and there was very little hassle with the banks and title company when selling some real estate. The paper was literally worth its weight in gold.

Next, use your recollection to consider the Terry Schiavo case in Florida a few years back. What a horrible situation this was. Someone called me to consult on the case back then and even now I am still unable to make a conclusion on the right and proper course of action that should have been taken.

It was a huge mess. Having a medical directive or a “medical durable power of attorney” can and should be of immense value in reducing at least a great deal of the problems inherent in the Schiavo situation.

The principal gives power to another (the “agent”) to make medical decisions for them when they have become incapacitated. Such power does not automatically derive from being married to a person, as the Schiavo case illustrated only too well. Leaving a well-drafted medical power of attorney is a wise and prudent thing to consider.

In mine, I have also given my agent the authority when and if to also use my living will. I want no litigation or complexity in my own last illness when I am effectively deceased.

The properly drafted medical power of attorney can help you get around the H.I.P.A.A. privacy laws relating to medical professionals having to maintain your privacy. Hospitals and physicians are required to maintain your privacy and go to great lengths to insure their compliance with H.I.P.A.A.

Another area I am disturbed to discover in working with some of my farmer friends is the lack of ability of some of them to place their hands on the deeds to their real estate.

Most folks assume the extent of what they own. Be proactive and know for certain that you own exactly what you think you own and know that you can put your hands on a deed or on the probate or trust papers in which you inherited the property.

Many farmers are third or fourth-generation landowners, and they assume they own the farm. Sometimes, they are surprised to discover that they own it with a cousin in Idaho or New Hampshire, whom they have seen only once in their lifetime.

My stringent advice to you is to be able to locate your deeds or other sources of title to your real estate. When you have done this, be sure you can prove you have “superior title” to the real estate. Make sure that no one else can claim a portion of the land with you.

Nothing against that Idaho cousin, but it is you who has worked the farm and made it productive through all of these years. It might be a good idea to have your local attorney or title company do a search to make certain what the quality of your title is. It is always better to be safe than sorry.

These are just some of the problems I am encountering as I talk to readers and have worked on some of their estate planning matters myself.

In the next column, we'll continue talking about more technical matters you can use in your estate planning. Please feel free to call or write if you have any questions. May God richly bless you before we speak again.

Mark Tippins is an Auburn, Ala., attorney licensed in Alabama and Florida. For questions or comments, he can be contacted at [email protected] or (334) 821-3670.

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