At least twice in the past week I have met with a client who has said that they want “simple” documents. This statement is a recurring one in my practice. Prospective clients frequently tell me that they want a last will and testament, power of attorney, or living will that they can understand.
Most measure the quality of the document by its length. A really short Will is a good Will. A long Will is a bad Will. The fact of the matter is, a short document does not necessarily equate with a good document.
There’s a famous line, and I’ll paraphrase, that goes, “Sorry to have written you such a long letter, I didn’t have time to write a short one.” I love that line, and I believe in it. But as much as I love that line and try and live by it with my writing, the fact of the matter is, not every document can be short, or should be.
For instance, when a client comes to me and asks me to draft a financial power of attorney for them, I could draft a one page document. The problem is, the person the client names to make financial decisions for them in the event the client cannot make decisions for himself, called the “agent,” can only do for the client those things that the power of attorney document permits him to do.
When you think of all the possible financial transactions that an individual may need to enter, it is simply impossible to address all those transactions in one page. I have frequently had financial institutions tell me that they will not permit an agent to perform a certain task because that task is not stated in the power of attorney document.
If I drafted the power of attorney, I have always been able to avoid this problem by pointing to language in the document that does permit the agent to perform the task, but there have been times with powers of attorney that other individuals drafted that I cannot point to the appropriate language in the document.
If the power of attorney fails to address the particular transaction that needs to be accomplished, then I have to inform the client that a guardianship proceeding may be necessary. Most people have powers of attorney to avoid the need to have a guardian appointed for them, so having a poorly drafted power of attorney that doesn’t permit the agent to make all the decisions he may need to make is self-defeating. For this reason, I always counsel clients to have a very broad power of attorney.
Even if you think This doesn’t apply to me, I advise keeping it in the power of attorney, because the fact of the matter is, you never know. Many clients who want documents with very few words tell me that they have a very simple life, but thing is, the client isn’t planning for their life as it exists now.
As their lives exist now, these clients don’t need a power of attorney. The client is capable of making decisions for himself. By signing a power of attorney, the client is admitting that someday his life may be different, so the client should realize that there may be things his power of attorney agent needs to do for him that he has never done for himself.
Similarly, with a Will, a client might say, “I just want everything to go to my children. My Will can be two pages long.” In most cases, the client is right. The client will probably predecease his children, all the children will get along well enough during the administration of his estate that no great problems will arise, and his Will could be very short.
But you never know. A child may predecease the client. The children may end up fighting one another over real or imagined issues. A creditor may make a false claim against the estate for services that were supposedly rendered to the decedent. The Will should be drafted to address the possibility of these issues, not only to address the issues that will arise if all goes perfectly well.
While it is good to be concise with many matters in life, when planning for future possibilities, it is often better to take a broad approach. The fact of the matter is, none of us can predict the future.