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The KRASA LAW, Inc. Estate Planning Blog

Friday, June 5, 2015

Avoiding a Vocabulary Argument

As a proud holder of a Bachelor’s of Arts degree in English Literature from Saint Michael’s College in Vermont, I appreciate a good vocabulary argument.  I can remember long nights with my college roommate where we would engage in “dictionary battles,” challenging each other’s definition and pronunciation knowledge.  I’m pretty sure this is a typical college pastime enjoyed for generations at colleges and universities throughout the country.  However, as a lawyer in the “real world,” there are times when it is best to avoid a vocabulary argument.

The purpose of estate planning is to provide an efficient mechanism for trusted individuals to act upon your behalf in the event of your incapacity and upon your death.  Once you are no longer able to act, all that is left is the language of your estate planning documents.  I am a big proponent of drafting documents that have clear and detailed provisions.  If there is a question about the meaning of a term, I want there to be language that explains the intent in multiple ways.  This is a situation where redundant text is preferred so that there can be no debate.

I recently found myself engaged in a vocabulary argument with a major bank.  My client’s mother, who is mentally incapacitated, owns a safe deposit box at a local branch.  My client wanted to use the authority granted under his mother’s power of attorney to access the safe deposit box.  The power of attorney was drafted by a different attorney and it was a “statutory” power of attorney, a standard form set forth by the California Probate Code.  

I eschew the use of the statutory power of attorney because I feel that the language is typically too vague.  Whereas the power of attorney documents I typically draft have an entire paragraph devoted to safe deposit boxes, the statutory power of attorney does not have any language specifically referring to safe deposit boxes.  The closest provision I could find was “banking and other financial institution transactions.”  

The bank’s legal department upon reviewing the power of attorney stated that my client did not have the authority to access his mother’s safe deposit box.  The legal department concluded that safe deposit boxes are not included within the meaning of “banking and other financial institution transactions.”  The legal department suggested that my client petition the Court for the authority to enter the safe deposit box which would have cost thousands of dollars and months of delay.  

Upon what basis could the legal department claim that a safe deposit box is not included within the meaning of “banking and other financial institution transactions”?  Logically, safe deposit boxes should be included within that definition.  After all, safe deposit boxes are located at and controlled by banks.  I was ready to challenge the bank’s conclusion but I knew that I needed to search for authority to support my position as logic alone is not enough.

Fortunately, the California Probate Code has an answer.  The state legislature over the years has realized that detail matters.  Sections 4450 through 4465 go into great detail as to the meaning of the general statements of powers in a California statutory power of attorney.  In reviewing those sections, I came across California Probate Code Section 4455(g) which states in part: “In a statutory form power of attorney, the language granting power with respect to banking and other financial institution transactions empowers the agent to . . . [e]nter a safe deposit box or vault and withdraw or add to the contents.”  I found the “magic bullet!”  

I photocopied the section and sent it to the bank’s legal department.  Shortly thereafter, the bank reversed its position and granted my client access to his mother’s safe deposit box.  I had the “dictionary battle,” saving my client the hassle and expense of unnecessary court intervention.  

Without the Probate Code’s specific definition of the term, “banking and other financial institution transactions,” we would have had a major problem.  The incident reiterated the importance of detailed provisions.  Many clients conflate length with complexity.  They feel that their situations are “too simple” for a thick estate plan.  On the contrary, a plan that includes robust language and detailed provisions to cover all bases is actually simpler and easier in the long run.  Although in this example we were saved by the Probate Code, it would have been even easier and simpler to have had the definition within the body of the power of attorney document itself.

It is never wise to cut corners when drafting or executing an estate plan.  A competent attorney can help you make sure that all questions are answered, avoiding any unnecessary and expensive vocabulary arguments.     

KRASA LAW, INC. is located at 704-D Forest Avenue, Pacific Grove, California, and Kyle may be reached at 831-920-0205831-920-0205.

Disclaimer: This article is for general information only.  Reading this article does not establish an attorney-client relationship.  Before acting on any of the information contained within this article, you should consult a competent attorney who is licensed to practice law in your community.   


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KRASA LAW assists clients with Estate Planning, Elder Law, Pet Trusts, Asset Protection, Special Needs Planning and Probate / Estate Administration in Pacific Grove, CA(93950), Monterey (93944, 93940, 93943, 93942), Salinas (93901, 93905, 93906, 93907), Hollister (95023,95023) Pebble Beach (93953), Carmel By The Sea (93921), Seaside (93955) and Carmel (93923, 93922) in Monterey County and San Benito California.

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