How the Sausage Is Made

I draft a lot of financial powers of attorney, health care directives, and last wills.  A lot.  For the young and for the old, even though I am known as an elder law attorney.  When you draft a lot of these documents, you use form documents.

I have been an elder law/estate planning attorney for twenty-five years.  Not only have I drafted a lot of estate planning documents for my clients, I have reviewed thousands of documents that other attorneys drafted, and I can tell  you without hesitation that every estate planning attorney uses form documents.

Form documents are a good thing.  The documents I draft for my clients are comprehensive, covering a wide variety of issues.  For instance, with a financial power of attorney document, the person  you name as your power of attorney agent can only do those things that the document grants him/her the authority to do, so you want your power of attorney to be comprehensive.

If years after signing the power of attorney document you are mentally incapacitated, your power of attorney agent will need to use the document to assist you.  If the document fails to address a given financial issue (for instance, accessing your IRA or 401(k)), then your agent will not be able to access those assets.  If your agent cannot access your assets, then your agent cannot pay your bills.

A typical power of attorney that I draft is about fourteen pages long.  While that may seem like a long document, over the years, I have found that it is better to address issues than ignore issues.  An individual client may never have a specific issue that my power of attorney addresses, but if a client does, the issue is addressed.

Let us assume that Mr. Smith drafts his own power of attorney document, using an online service, naming his son, Joe, as his power of attorney agent.  Ten years after signing the document, Mr. Smith is mentally incapacitated, so he cannot sign a new power of attorney document.  (A person has to retain their mental capacity in order to sign a power of attorney document.)

Joe goes to Mr. Smith’s bank to perform a financial transaction for Mr. Smith.  The bank refuses to perform the requested transaction because, in the bank’s opinion, the power of attorney document fails to address that issue adequately.  What now?  In all likelihood, Joe would have to file for guardianship over Mr. Smith.  A guardianship is a court proceeding through which Joe would have a court declare his father incapacitated and Joe would be appointed as Mr. Smith’s legal guardian.  Guardianships are expensive.  And having to declare your dad incapacitated is emotionally draining.

By the time a problem in a power of attorney, health care directive, or last will is found—it is often too late to fix the problem.  A person has to be competent to correct a mistake a power of attorney or health care directive, and a person has to be alive to fix a problem in a Will.

It is for these reason that forms are good things.  I have developed my forms over twenty-five years.  I have had tens of thousands of clients who have had millions of issues.  I have seen my forms withstand those issues.

Imagine if every time a client came to me, I drafted ever word of their documents from scratch.  I can tell you that I would forget to address certain issues.  There would be many typos and grammatical errors.  When it comes to estate planning documents, bespoke is not good.  Forms modified to address the individual client’s desires are industry practice and good practice.

So, can you draft your own documents using an online service?  The commercial says you can draft your own Will for prices starting as low as $159.  These services guide you in drafting your own Will.

I have seen many of these forms and some are okay in my opinion. But ultimately you are drafting your own legal documents.  When there is an electrical short in my house, my first instinct isn’t to watch a YouTube video and tackle the issue myself.  I call an electrician.  Could you save a couple of hundred dollars drafting  your own documents, you could.  You could save some money doing your own electrical work too.