Three weeks after they canceled their schedule appointment for a complimentary consultation, I got a call from Marg informing me that her husband had fallen off a ladder and hit his head. He had been in a coma for the last 15 days, and Marg wasn’t able to gain bank account information, sign his pension check, take money from his IRA, or even direct his care at the hospital. She told me they did not have anything like a power of attorney for health care or for financials, or even a Will! She wanted to know how she could help her husband of 52 years. I explained that the only way to have the authority to access financial information or to direct his medical care was to sue her husband for legal Guardianship. She then said “If only we had kept the appointment with you, I wouldn’t be in this mess!! But my husband said he was just too busy, and we would get to it later.”
Planning for those unexpected events can have a huge impact on the resulting stress and confusion your family experiences during those difficult times, your final days and even after your death. While it may be hard to think about incapacity and these ends life things, especially if you are currently healthy and still working, you likely want to leave lasting memories of love and care, not frustration, courts, fighting and in ability of your family to help you in a time of need. A comprehensive estate plan covers so much more than just end of life wishes. It plans for the unexpected events that may happen while your alive, not just who gets your china when you are gone.
Healthcare Directives, Life Support and Powers of Attorney
Whether you get in a serious car accident or live well into your 90s, one document likely to come into play in your final days is your Advance Directive for a Natural Death, i.e. your Living Will. This gives specific directions to your doctors and your health care agent about whether you want to be kept on life support, what types of interventions you want doctors to use to sustain you, and more. These decisions may change as you age, so reviewing this document periodically is smart. In addition to this, you also need a current Healthcare Power of Attorney. A healthcare power of attorney is a document where you appoint someone who is making healthcare decisions for your when you’re no longer able to do so. It is likely this document will be used at various times throughout your life, like during surgeries, rehabilitation events, and certainly for long term illnesses where you cannot make your own health care decisions. This makes it so your family won’t be left wondering what your preferences are, or fighting with each other about decisions to be made which may be influenced by their own personal preferences. Since you’ve already decided many situations for them, they can focus on coming together around you and providing love and support to each other.
Guardianship and Mental Health Care
For many older adults, the onset of dementia and other age-related mental disease is scary, not just because of the loss of metal functions, but also because they are suddenly becoming dependent on another person for potentially an indefinite period of time. Wealth carefully built over the years must now sustain you for potentially many years more, but you’re not in the position to guide and direct how it’s used and spent. With comprehensive estate planning documents in place, you have already had a chance to consider this situation and decide who will be responsible for making the determination that you are “mentally incompetent,” and who you trust to handle both your financial, legal, and healthcare decisions.
Care for Minor and Disabled Children
For many people, their first thought of putting an estate plan in place is when they start a family, and they now have to consider what will happen if both parents die and minor children survive. This decision can be fraught with emotion, as choosing between family and friends to help raise and care for children can be difficult. Certainly, this decision to will likely change over time. Nevertheless, appointing a guardian in the event something happens is extremely important, because otherwise, the state determines who will be guardian, and it may not be anyone you would want raising your children. Additionally, a complete estate plan should direct that assets the parents leave behind be placed into a trust to help provide for a child’s needs. Often, families dictate a division of financial assets for children from the physical custody so that multiple parties are looking out for your child’s well-being. Your estate plan can also direct exactly how the available assets are spent to support the children such as funding education, physical care, healthcare, vacations, and other needs and at what point any remaining assets are given to directly to a child once they are age 18 or older. If you do not plan for the holding of assets to the benefit of the child, then your assets will likely end up under the lock and key of the court, without anyone being able to access them except for the child upon their eighteenth birthday! For many parents, this planning is also coupled with a life insurance policy designed to provide enough assets to raise and/or support the child. But beware, do not leave the life insurance to your estate. It should pass outside of the estate to avoid creditors being paid the money and instead, be directed to a trust that sets it aside for the child.
Disposition of Assets
In any estate plan, the main question is what will happen to everything you worked so hard for after you are gone. Your estate planning attorney will have a variety of different strategies to choose from to ensure you have the perfect plan in place for your family. Your beneficiaries could include spouses, children, step-children, grandchildren, employees, friends, and even charities. For estates below the federal estate tax threshold, people often choose to use a revocable living trust. Revocable living trusts are great, especially if you want to avoid probate and have ease of access to your assets should you become incapacitated while you are alive. Otherwise, you may choose to have a traditional last will and testament that designates who will inherit your assets, once everything makes it way through the Court Probate process.
An important decision you’ll make at this point is who will be the person responsible for carrying out your wishes, either in your revocable living trust or your will. This could be your spouse, a responsible child, a close friend, or a trusted advisor or institution (and you also choose a backup) to ensure you goals are carried out after your death. In each of these instances, you can provide guidance and directions to that named fiduciary, and then direct them on how to act at the time of your death.
But if you never plan, and continue to procrastinate, or if you put plans into place never revisiting them when life changes or law changes, it is a recipe for a disaster that ends in an unhappy ending, wasted assets and unfulfilled wishes.
To get started on the right track or for help reviewing your current situation and crafting a comprehensive estate plan, reach out to the team at Thomas-Walters Probate & Estate Planning. They offer a complimentary lifetime lawyer program, which allows you to update your estate plan when life changes, when the law shifts, or you just change your mind, ensuring your estate plan always reflects your personal goals, no matter what has happened along the way.
