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The 25th Amendment Sets An Example For Crisis Estate Planning

The message behind the 25th Amendment is the same advice that all clients should heed with regard to their personal estate plans.

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In recent weeks we have been hearing a lot about the 25th Amendment. Ratified in 1967, it changed part of Article II, Section 1, of the United States Constitution. Given the protests and attacks that have plagued the United States Capitol and many parts of the country, some have called for Vice President Michael Pence to invoke the 25th Amendment in order to remove   President Donald Trump from office. The relevant portion of the Amendment is:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

In short, the Amendment provides that the vice president and either a majority of the executive Cabinet or a Congress-appointed body declare in writing that the president is unfit for office.

Hearing these words, my thoughts easily transfer to my own law practice. Essentially, the process for the removal of a president pursuant to the 25th  Amendment is akin to the use of a power of attorney, when an individual loses her capabilities to manage her own assets. What a lesson the 25th Amendment provides in making certain there is a plan in place in the event of incapacity, tragedy, or even a temporary emergency. The message behind the 25th Amendment is the same advice that all clients should heed with regard to their personal estate plans.

Interestingly, the 25th Amendment, while ratified in the aftermath of President John F. Kennedy’s assassination, was first broached by Congress as a result of President Dwight Eisenhower’s series of heart attacks in the 1950s. Ironically, Senator Estes Kefauver who championed the Amendment, died after having a heart attack on the Senate floor in 1963.

The 25th Amendment describes the procedure when a president dies, resigns, or is removed from office. These possibilities are often delineated in estate planning documents, when appointing successor fiduciaries such as executors and trustees. A last will and testament controls the disposition of assets when you pass away. A power of attorney controls assets while you are alive. You can have a power of attorney effective immediately or only when you are determined to lack capacity. If the latter power of attorney, often referred to as a “springing” power of attorney, a principal can appoint specific physicians to make the incapacity determination in the event one needs to be made.

A power of attorney allows an agent to make decisions on everything from banking to real estate to tax planning to gifting. The authority afforded to an agent under a power of attorney is significant as the appointed individual stands in place of the principal and can contract, invest, gift and spend on her behalf. Similar to the vice president’s role in invoking the 25th Amendment, at times it is the agent who leads the charge to remove the principal’s authority. For example, a child appointed to serve as an agent under a power of attorney, may sense that their parent has diminished capabilities and that she is unable to manage her own finances and property. Depending on the type of power of attorney, the agent may either immediately take control and act, or seek a capacity determination from physicians, who may or may not be specified in the document. Like with the 25th Amendment, an agent hopes to not have to use such a vehicle, however, it is best practice to have it ready, in the event of crisis.

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Succession planning is extremely important for businesses, countries, and even individuals, the latter of whom use powers of attorney and last wills and testaments to dictate their wishes. Although it appears unlikely that Pence will invoke the 25th Amendment during this presidency, we must use the public deliberations and debate surrounding its purpose, as a guide to take care of our own lives. If we do not take such actions, we may very well end up like the impeached president, whose fitness to act is being formally questioned.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

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