What would you do if you arrived at work one morning only to discover that your boss was hospitalized and in a coma, and – to your complete surprise – had named you as his agent in his General Durable Power of Attorney and Durable Power of Attorney for Health Care Decisions? At its core, this is the question grappled with by the main character in the very fun legal thriller While Justice Sleeps, by Stacey Abrams (yes, that Stacey Abrams). Not only does Abrams use estate planning documents to structure the plot in her novel, she manages to do so while maintaining the dramatic tension and pace of a satisfying thriller.
Fiction allows Abrams to heighten what is at stake in the novel by creating extraordinary lives for her characters. The main character, Avery Keene, is a graduate of Yale Law School and a law clerk at the Supreme Court. Avery’s boss, Howard Wynn, is a U.S. Supreme Court Justice known to be the swing vote on the Court. In the novel, Justice Wynn is married (albeit unhappily) and has a very competent adult son, but he inexplicably nominates Avery as his agent in his estate planning documents. The action begins with Avery – and everyone else up to and including the President – attempting to divine why Justice Wynn would want his clerk to have control over his finances and health care decisions rather than a member of his family.
One thing about estate planning that Abrams gets right in the book is that there is no requirement to name a family member as a fiduciary. Without giving too much away – because you really should read this book – Avery learns that Justice Wynn had several very good reasons for nominating her over his family members as his agent in his power of attorney documents. Perhaps most important, he saw in his law clerk specific qualities and values that he wanted in the person who literally would be making life-or-death decisions on his behalf. As Stacey Romberg wrote in this blog post, “[n]ot everyone is cut out for the rigorous task of serving [of serving as a fiduciary].”
Another thing Abrams gets right: The importance of naming backup fiduciaries in estate planning documents. In the novel, Justice Wynn used his backup fiduciary nominations as a means of motivating, and manipulating, Avery to accept appointment in her fiduciary role. While nominating a backup fiduciary to heighten suspense or as a threat is never recommended, the novel does a good job of weaving into the plot the reasons why it is important to nominate a backup to serve if the first nominated fiduciary is unable or unwilling to fill the role.
Abrams also does an excellent job demonstrating the level of responsibility that an agent assumes in making financial and medical decisions on behalf of another person. In the novel, the plot is propelled forward by Avery’s quest to find out what Justice Wynn knew that led him to make his unorthodox estate planning decisions. Of course, Justice Wynn is not exactly an ideal estate planning client. Allowing a fiduciary to find out about their nomination to that role when a dreadful event happens might be a good plot device, but it is a terrible practice in real life. Similarly, creating an elaborate puzzle that a fiduciary must solve to locate portions of your estate planning documents is never a good idea. Avery’s aptitude for solving complex puzzles is one of the reasons that she is a compelling character and makes the novel a page-turner. But hiding estate planning documents in real life can cause major headaches – if the documents are ever discovered at all.
While Justice Sleeps manages to use durable powers of attorney to heighten the novel’s intrigue and suspense – not an easy feat. The novel’s action takes place in the world of the Supreme Court, high-ranking political leaders, powerful corporations, and shadowy deep-state surveillance, but it is grounded in the same estate planning decisions that everyone needs to make for themselves. One final thing that the novel gets right: The importance of establishing a long-term relationship with an estate planning attorney and regularly your updating estate planning documents as circumstances change.
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