The Trouble with Legal Forms

Posted on: October 24th, 2014 by Mark R. Friedman

E-commerce is seeping into everything these days, including estate planning.  Online for-profit companies offer to generate a Power of Attorney document for you, using pre-fabricated forms that you plug your information into without ever consulting an attorney.

On the non-profit side, hospitals and other providers offer form Healthcare Directive documents that you write your information into, at no cost.  The State of New Jersey even offers a free form online.
This is all fine, until it isn’t.  The problem is that form power of attorney (POA) and healthcare directive documents often are inadequate when you really need them.

A POA and healthcare directive allow your loved ones to manage your affairs if you lose mental capacity, due for example to progressive dementia, Alzheimer’s or a stroke or coma.  Once you lose capacity, it’s too late to make a new POA or healthcare directive, so it’s very important to get it right the first time.

Yet most generic form documents I see don’t include important provisions.  New Jersey’s proxy directive says nothing about HIPAA privacy rights or visitation rights, which could leave loved ones with no right to access patient information or visit the patient.  And I’ve yet to see a POA form document that includes the provisions necessary to do Medicaid planning.  In other words, if you use a form POA and lose capacity, your loved ones couldn’t use the POA to preserve your nest egg from long term care costs, which is an important goal for many of our clients.

Everyone should have a healthcare directive and consider a POA, and form documents are better than nothing.  But if you lose capacity, then your family will rely on these documents to make things easier during a very difficult time.  For something that important, in my view it’s worth consulting an expert who can make sure your goals are met.  I wouldn’t trust it to a form.

As this website provides general information and isn’t tailored to your particular situation, it doesn’t constitute legal advice and may not take into account rules and exceptions that affect you. Although updated from time to time, this website may not take account of recent legal developments or differences in laws from state to state. For safety sake, obtain individual legal advice before you act! You assume all risk of acting on information contained in this website. This website doesn’t constitute legal advice, and no attorney-client relationship exists unless FriedmanLaw and you execute a written engagement agreement. Please contact us at 908-704-1900 to discuss engaging FriedmanLaw to help resolve your legal concerns.
Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
Interior photo: Somerset hills pastoral scene by Lawrence Friedman.