My two children (single 54 yr old woman and 47 yr old son, married with two daughters) do NOT get along and I can't favor one over the other. I have seen this in the huge battle going on over my demented ex-husband's care. Each of them says I should put one of them on my bank account in case I do develop dementia some day (it actually runs in my family and I am 79 now). All of my ongoing bills are paid by automatic bank draft. Also problem with durable POA--my current will has them as joint but I see now that won't work. My daughter is a nurse and has the health care POA, but is not in best of health herself, being extremely overweight. She says I need a living trust, as the bank doesn't necessarily recognize POAs anyway unless they are recent. I just made out a new will two years ago after my 2nd husband died of a stroke (he also had mild dementia) and don't want to renegotiate it right now, but also want some advice on what options are available. How does it work to have an attorney as your durable POA? What kind of fees do they charge? Might I not be better off in setting up two separate bank accounts and putting a different child on as a joint owner--of course I would have to arrange the automatic deposits and payments as evenly as I could to keep relative balance the same.
1. Your profile includes a question on the difference between POA and a Living Trust. POA addresses delegation of responsibility while you're alive and ceases on death. A Living Trust provides more options than a will, (in Michigan) is required if anyone is specifically disinherited, allows for assets to be retitled in the name of the Trust and completely avoid Probate.
Accountings are still required, but they're provided by the Trustee to the heirs, not the Probate Court. No publications are necessary and handling of your affairs is kept out of the public eye - no annoying realtors soliciting to handle your house, which can happen with Probate.
Post death, a Living Trust does require addressing complicated tax issues, but a lot of that also depends on what assets are funded into the Trust. If assets aren't retitled in the name of the Trust, there's no point in having it. That "funding" is critical.
There are limitations though: I found that the Secretary of State won't retitle a vehicle in the name of the Trust; it has to be an individual. Same with homeowners insurance. So I retitled those assets in the name of the joint trustees.
2. It doesn't seem as though your adult children are going to be able to work together, and separating the duties might not work either. Your daughter might be overweight, but that shouldn't affect her health care decisions unless she herself becomes too ill to make those decisions. And anyone can become too ill to act as proxy, regardless of physical size.
3. What troubles me about their frictional relationship is that often people who are inexperienced with managing affairs for others misconstrue their own powers and make inappropriate decisions well beyond the scope of the authority delegated. I could see this as a problem with your son and daughter. The resulting friction can interfere with management and decisions on your affairs.
4. Some people will ask an attorney or accountant to serve as proxy under POAs, as Personal Rep/Executor/Executrix under a Will, and/or as Trustee under a Living Trust. This is an impartial decision and takes the potential friction and contention away from the siblings.
5. Attorneys would likely involved a paralegal to handle administration of a Will or Trust, with supervision of the attorney. I don't know if accountants use any para professionals. The hourly rate of a paralegal is significantly lower than an attorney. I don't know what current rates are, but back around 2000, paralegals could be billing anywhere from $75 to $125 or more per hour, while attorney's hourly rates were more likely to be in the $250, $275 and into the $300 range, for noncorporate matters. Rates vary depending on the type of law practice.
6. I think it might be difficult and would be advisable NOT to set up accounts and fund them equally for each of your children to manage. This may sound cruel, but if they can't get along to work together for your benefit, I'd take the financial and legal control away from them entirely.
I could easily see a situation in which something needs to be done, they don't agree, one doesn't want to spend his or her allocated funding, and necessary issues don't get addressed. I.e., how would you handle your estate or trust financial obligations? Would you split the bills half and half? What if one person doesn't pay the bills and they become delinquent?
7. What I would do is inventory all the assets, then see an estate planning attorney to discuss the tax treatment of your assets, as this could be significant depending on what assets you have (IRAs especially). Trust assets at taxed at different rates than individual assets.
8. Also discuss retitling assets jointly with you and both your siblings, but raise the issue of their contentious approach. E.g., if you retitle a house to be held jointly by you and both siblings as joint tenants with rights of survivorship, on your death title will pass to both siblings. It then would be up to them to decide what to do with the house. This could happen with any of your assets, but, frankly, you'll be gone then and they'll have to figure out ways to get along. That is, unless you specify that assets need to be sold and the funds divided equally.
9. You don't need to renegotiate anything or make any decisions now, but I would discuss the whole issue with an attorney so you can understand what alternative options exist. And you need to get correct information, as your daughter's advice to get a Living Trust b/c banks don't always accept POAs is not entirely on point. Banks have their own methods of reviewing Living Trusts to determine if the requisite conditions are included.
In addition, a LT isn't going to provide the same proxy authority as POAs.
My POA dies with her so any bills that come in between her death and the opening of an estate and estate accounts, cannot be paid.
Upon her death, the money belongs tot he estate and must be divided per the will or probate court.
I am a joint owner of one of Mom's accounts. With this, I can do all of the above plus online banking. Upon Mom's death, I own the money completely and it does not pass through the estate. It is just matter of showing the bank a death certificate and taking her name of the account. And, there is no rush to do that. It took me about ten years after Dad passed to take him off our joint account.