Estate Planning Across The Border
Drafting wills, financial powers of attorneys, and other documents requires attention to detail. One major issue for estate planning attorneys in small, East Coast states such as Delaware, is that clients often move, work, and frequently seek services across a state boundary. In Delaware, for example, clients routinely move to Maryland or Pennsylvania in retirement. Similarly, many Pennsylvania residents move to neighboring Delaware or Maryland to avoid the 4.5% inheritance tax on bequests to their children.
People inherently do not want to think about their own death. This understandable mentality often leads to putting off estate planning and is among the top reason for calls from Christiana Hospital, Union Hospital, Wilmington Hospital, or other health care facilities requesting urgent assistance with estate planning. Further complicating client meetings in a hospital is the fact that often, a resident of Maryland or Pennsylvania may be hospitalized in Delaware.
One complication, for example, is that Pennsylvania law provides that when a Power of Attorney is silent as to which jurisdiction’s laws will be applied for definitional purposes, “the law of the jurisdiction in which the power of attorney is executed” will be applied. 56 Pa.C.S. § 5613. Therefore, if a Pennsylvania resident seeks a power of attorney while physically outside of the Commonwealth, care must be taken that a choice of law provision is inserted into the document.
State laws can complicate the actual signing of documents. For example, in Maryland, a Notary is specifically authorized by statute to act as both a notary and one of the two witnesses to a power of attorney. See Maryland Estates & Trusts § 17-110(b). While a Pennsylvania power of attorney requires two witnesses and a notary, the Pennsylvania law specifically prohibits the notary from acting as one of the two witnesses. See 56 Pa.C.S. § 5601(b). It is thus critically important to understand the distinctions between the state of residence and state of signing so as to not run afoul of a specific requirement found in the statute of the signer’s home state.
As an attorney licensed in Maryland, Delaware, and Pennsylvania, Gregory F. Birney assists residents of the tri-state area with estate planning, and is cognizant of the issues faced when clients find themselves in a health care facility outside of a client’s home state.