Power Of Attorney with Darby

Michelle (00:02)

Welcome one and all to another episode of Decluttering 55 Plus with Michelle Passoff. Here we discuss all things next level clutter, the areas of life that many of us would prefer to sweep under the carpet to put off another day or forever. If you’re confronting or confounding on the road ahead, it’s next level clutter because it keeps us stuck. Our job on this podcast is to help you straighten things out so you can move ahead without obstructions to living your life fully.

as you age and in fact at any age. We talk with experts and authors, authorities and geeks about their, who expertise to some hot topics, including resetting your health, fitness and eating regimen, taming digital color, preparing a memoir, tending to social connections, deciding where to live and what to do next, getting your financial house in order and even pre-planning your funeral in addition to getting your financial house in order.

One of the next level clutter topics on the Decluttering 55 Plus agenda is to get your legal matters in order. Today we’re gonna zero in on that part of the estate plan, which addresses handling your financial affairs if you’re incapacitated and still alive. This is called Power of Attorney. And we’re going to talk with Darby Jones about why everyone, all adults, need a power of attorney, regardless of whether you’re rich, less endowed, or somewhere in between.

This conversation is for you. Darby Jones is an attorney and a member of the Florida and Maryland Bars. She serves as a trust officer for financial institutions in Maryland and launched professional fiduciary services in 2011 in Florida. She has served individuals and families in a variety of fiduciary capacities, including as a trustee, agent under the attorney, power of attorney, healthcare surrogate.

personal representative and a professional guardian. She is also a founding member of the Professional Fiduciary Council of Florida and the host of the monthly webinar on YouTube in collaboration with AARP of Florida called Academy, Aging Academy, Navigating Decisions. You can find it on YouTube. Let’s get clear and decluttered with Darby Jones about Power of Attorney. Welcome, Darby.

Darby (02:53)

Thank very much for having me.

Michelle (02:54)

Yes,

tell us a little bit about what brings you to being a fiduciary, which is a very particular realm of counsel for people who are aging or not aging, but who need it.

Darby (03:08)

Absolutely, I’m happy to. What brought me here was the years of being an estate planning attorney and a trust officer. One of the most common situations I ran across were people who either were reluctant to get their estate planning done or when they did get their estate planning done, they didn’t have anyone to name. To name as that agent in a power of attorney or as a fiduciary, whether a personal representative or an agent in the healthcare surrogate. So about

Gosh, 15 years ago now. Time flies. I decided to help fill that niche. And so I have now been serving as what I would call a private fiduciary, or what we call professional fiduciary. And we have created here in Florida the Professional Fiduciary Council, which is a resource for people who need someone to name in those documents or to name after their spouse in case the spouse is not available.

So that’s how I ended up doing this as a living and I’ve enjoyed it. It’s very gratifying and taking care of people. It’s like private social services.

Michelle (04:10)

And the fiduciary council of Florida is not the only fiduciary council. There are a couple of states around the country that do have the service of somebody who you can go to to take care of these sensitive matters when they’re

Darby (04:25)

That’s a good question

and the truth of the matter is there are not very many. In fact, California has a very well developed professional fiduciary association. It’s been in existence, I want to say 37 years. So they were really an inspiration for our council to get started. We have been around now for seven years. So they’re like Walt Disney World and we’re pretty much a petting zoo at this stage. But we’re getting started. But there very few. Arizona is the only other state that I know that has any sort of

organization around fiduciaries, but it is a growing interest and people have asked me that question a lot. I wish there were more associations around the country, but hopefully we’ll leave the charge with that and there’ll be more.

Michelle (05:10)

Okay, let’s roll back to planning your estate. Now, there are many elements of planning an estate. We’re gonna zero in on power of attorney today. Can you name off the elements of planning a state and then let’s zero in on power of attorney.

Darby (05:30)

In fact, I’m glad you have asked me to speak about this particular document because when it comes to estate planning, it is the most important document. Typically when someone gets their estate planning done, they’re gonna walk out of that lawyer’s office with five documents. A will, a trust maybe, that’s a discussion for another day, a power attorney, a healthcare surrogate, and a living will.

Those are five documents. Only one of those documents really matters at your death. The rest of those documents are super important while you’re alive. A state planning really should be called life planning because these documents are important while you’re alive. And of those, the power of attorney is the most important. So power of attorneys are really designed to name someone who can step in your shoes and act.

as fully as you do. So for example, you get hit by lightning or you get run over by a car. I’m your agent under your power attorney. I now I’m going to step in and take care of all of your affairs, whether it’s getting the grass mowed, getting your taxes done, paying your bills, making sure your home’s taxes are being paid, the whole wide gamut of everything that you would have been doing individually.

Michelle (06:56)

Is it mostly focused on the financial aspects of your life?

Darby (06:59)

Yes, it is typically the financial aspect. And that’s why that other document is the healthcare surrogate, which would deal with more of the healthcare issues. So for example, you’re in the hospital, you cannot speak for yourself. It may be temporary, just been something you’re going to recover, but at the moment you’re unable to speak for yourself, that’s when the healthcare surrogate would come in and speak on your behalf. It should be the same person ⁓ would be my recommendation.

Michelle (07:26)

Maybe

your healthcare surrogate and your financial surrogate. And the power of attorney, is that different names in different states or is it always called the power of attorney?

Darby (07:29)

I recommend it.

There are different kinds of power of attorneys. And some states call them durable power of attorneys. Some states have what they call limited power of attorneys. ⁓ So every state will have a different title for it, a little different terminology. But the bottom line is the effort is to have a document that legally names someone to be able to take care of your financial affairs.

Michelle (07:58)

And who should that be? ⁓

Darby (08:01)

Well, that can be a challenge. It clearly ought to be someone that you trust, that’s available, and that is willing. Okay? And that’s not always your daughter. It’s not always your son. It may not be a family member. So think about who it is that you truly trust, because that is, in all honesty, that’s the most important quality, because you can learn.

how to take care of their finances. can learn where their banking is or get educated by the attorney or the investment advisor or the CPA to handle that stuff. But if you trust that person to get that knowledge and to make the right decisions, that is without a doubt the most important thing to look for. Next, are they available? Are you naming someone that’s older than you? Are you naming someone that lives really far away? Not that that’s not possible to serve as an agent.

at a distance, but it’s not ideal, but it’s doable. ⁓ But are they available to serve? Could be your daughter. She could have a career. She could have five kids. She may not really have the time or the bandwidth to be able to take care of you. Imagine your day-to-day activity, your monthly activities, paying bills. mean, imagine it’s a full-time job. If I had to step in and take care of everything that’s going on in your life right now, that’s a lot of work, right?

So if I’m married, I’m a doctor, I’m an executive or an at home mom with lots of kids, how am I going to now be able to do as much as gonna be needed?

Michelle (09:40)

Well, know, begs the question, is the power of attorney paid for what they do? Or is it out of the love of you?

Darby (09:46)

Well, I was just out of love of you, but the truth of the matter is, yes, in Florida, you are allowed to be compensated for your time and expenses. And it’s also very important to track that time. Because if anybody, let’s say, now we only have 20 minutes, so I don’t want to get too into this, the, if you named me as your power of attorney, and let’s say we have another child, a son or a brother, who doesn’t like me very much and doesn’t trust me.

then I need to track what I’m doing. I need to record the expenses. All bright daylight, very open so that he doesn’t feel suspicious and that doesn’t cause more acrimony between the two of us.

Michelle (10:28)

Well, you bring up a ⁓ big another question, which is power of attorney in fact is a fiduciary. have an obligation to what?

Darby (10:38)

Absolutely. In fact,

the whole word fiduciary, we could talk about that at great length, what is it? A bus driver is a fiduciary, ⁓ a chef in a restaurant is a fiduciary, a doctor is a fiduciary, a pilot is a fiduciary. But the law imposes different levels of duty depending on what that fiduciary is acting as. And as a fiduciary and a power of attorney, that’s a very high level of fiduciary duty.

Michelle (11:06)

Means

you have an obligation. ⁓

Darby (11:07)

You have

an obligation to do what’s in your best interest, not my best interest. So I have to act on your best interest. And if I don’t, I can be found breaching my fiduciary duty.

Michelle (11:21)

So in order to become a power of attorney or to assign a power of attorney, you need documents. How do you find somebody to draw up those documents and make that official? And then I’ll have another question after that.

Darby (11:35)

Well, ⁓ obviously the best place to go is an estate planning attorney. And when you’re looking for an estate planning attorney, nowadays we’ve got the internet and Google and everybody’s website, But when you do find that website or Google that attorney, make sure that they didn’t just graduate from law school, okay? Make sure that they’ve been ⁓ doing that for quite a while. I’d say minimum 10, 15 years experience doing

estate planning. If you pull up the website and they do bankruptcy and adoption and real estate and divorce and and O.N. estate planning, I wouldn’t go to that lawyer. Go to one that focuses on estate planning. That way you’re getting someone who’s experienced and who’s going to give you the right document.

Michelle (12:24)

And how would you find that attorney?

Darby (12:26)

Well, number one, look at your local bar association and see who’s in that section of the bar who does the estate planning. That gives you a good indication who’s active and who’s interested in becoming a better attorney or has been around a long time. You can also go to the internet and find people who are certified, board certified in estate planning. And we should talk about elder law and the difference between the two.

But find someone who’s certified or board certified in estate planning. And keep in mind that it’s not about the cost. Okay, we spend more time figuring out what car to buy or what shoes to buy than we do. We worry less about that than we do about how much we’re paying our attorney to do the work. Those estate planning documents are critical for your life and your protection for the rest of your life.

It’s not like you’re going to go back and do this often. So don’t let the cost of the attorney be a deterrent to picking the right attorney. And use that time with the attorney as a consultation. It’s not about the documents that you walk out the door with. It’s about learning while you’re there, asking questions just like you’re asking so that you understand what that document is, what these five documents are, what do they do, what don’t they do, what do they say? Because a lot of people don’t.

Read the documents. They go in, they get them done in there. They want to get out of there as fast as they can because they’re worried about the hourly rate, right? But they really, you really need to take advantage of that time with that lawyer. Ask questions, prepare in advance, and read the documents, and get everything you can out of it as a consult. Not think of it as a product that you’re just going to walk out the door with the products and you’re done.

Michelle (14:17)

And the person who is assigned to be the power of attorney, should they know that they’re the power of attorney? Should they agree to be the power of attorney? And what information do you need to provide to them beforehand? And what information do you withhold until something might happen? Good question. know that’s a lot of questions in there.

Darby (14:36)

There are two questions there that I’m hearing. One is, should you share the information? Should you let your family know about your estate plan? Whether they’re gonna get it or not, or if they’re named or not. And there’s two schools of thought on that. One is, ⁓ do share it so that they know that your plan is in place, especially if you have a blended family. Makes Thanksgiving and holidays a little less tense if everybody kinda knows everybody’s gonna be okay.

It doesn’t necessarily mean you have to share the documents, but at least let them know, you know what, we’ve got our plan in place, everybody’s gonna be treated fairly. I don’t like sharing documents because you may change your mind, right? And then you gotta get them all back. So just say you’ve got your plan done, everybody’s taken care of, but I wouldn’t share the documents. How, what was the first question? How to name the person?

Michelle (15:24)

Yeah, that was what I had said before, yeah.

Darby (15:27)

You want to, the information, think about back when, well, I don’t mean to be talking just about from a female perspective, but think back when you had kids and you’re having the babysitter come over. You had a little list on the refrigerator of what they like to eat, what’s their favorite book, what soap to use in the bathtub, who’s the doctor’s phone number. Basic information about where to go if something were to happen. Do the same thing. There are lots of programs. Absolutely, you should say.

Michelle (15:52)

You should give them that before

anything happens to you. They should have that.

Darby (15:57)

Right,

say look, here’s just where to get, what bank do I use, who’s my fin, you don’t need account numbers, passwords, just basic information. Who to call, who’s my attorney, who’s my doctor, who’s my hairdresser, who does the lawn, who’s the pool boy, who’s the, you what am I allergic to, who to call in case of emergency. And I do have a form that I have ⁓ prepared for people.

to kind of walk you through those questions and easy answers. This is in a 20 page ring note.

Michelle (16:32)

You

just have to take the time to do it and you have to take the time to say something may or may not happen to me some time or another and while I’m alive I’m going to be responsible for that. say you know remember that you’re over 55 you’re not five so these are difficult conversations to have but necessary ones so I don’t think we have time to explore everything about power of attorney today but

⁓ We get a start and that’s the most important thing is to get started, get in action and get things done. So ⁓ we’re going to wrap it up for today and thank you for coming. Please pay a visit to our website www.decluttering55plus.com and click on the let’s connect button to sign up for all the news you can use. It’s a way for us to be in touch with you and moreover it’s a way for you to be in touch with us.

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