You shouldn’t assume that your family will “take care” of everything after you’re gone. Estate planning isn’t just about divvying up your stuff after death—it’s also about managing your affairs while you’re alive, but unable to manage them yourself.
Most people envision that they will die in the ordinary way, if there is such a thing. They picture themselves living to a reasonably old age, perhaps into their eighties, the husband dying first, and the wife dying some years later. Of course, no one envisions their children or grandchildren dying before they do.
But, what if you don’t die in the “ordinary” way? What if one of your children dies before you do, or what if you and your spouse die in a common accident? What if you are still alive, but unable to manage your own affairs because of a medical condition?
As an estate planning attorney, trust me when I say that the one thing that can wreak havoc upon your estate is when a family member has the nerve to die in the “wrong” order.
With that in mind, here is a run-down of the three estate planning documents every adult needs, and a little background on why each is important.
First, you should have an Advance Directive and Living Will. This document typically kicks in when you are unable to communicate with loved ones and medical providers regarding your wishes for certain types of medical care. For example, if you are terminally ill or permanently unconscious, you can make choices about whether you would or would not want to receive life sustaining treatment. This includes treatments that will prolong your life, but will not cure you. Many people choose to refuse life sustaining treatment under these circumstances.
Most importantly, it gives your family solace to know that the choices they are making—whether it is to cease life-prolonging treatment, or to pursue every last treatment option—are what you chose for yourself. If you recall the famous case of permanently unconscious patient Terry Schiavo from the 1990’s, much of the dispute centered around what she “would have wanted” for herself under the circumstances. Because she never executed an advance directive or living will, family members disagreed over the best course of action, and the case wound up in court.
Most of the advance directives I draft also include the appointment of a health care proxy. A proxy is a person you appoint to make healthcare decisions on your behalf if you are unable to do so yourself. Appointing a healthcare proxy is important, because it will likely save your family the time and expense of having a guardian appointed for you by the probate court.
Second, you should have a durable general power of attorney. This document names another person (your “agent”) to manage your financial and business affairs on your behalf. It may become effective immediately, or it may only become effective when you say it does (for example, after certification by your doctor that you are unable to manage your own financial affairs).
The most important step in creating a power of attorney is choosing the right agent. A power of attorney is a very powerful document that, in the wrong hands, can wreak havoc upon your affairs. You should also pick a trustworthy back-up agent to serve in the event your first choice is unavailable.
As with an advance directive, a power of attorney may save your family the time and expense of having a conservator appointed if you become mentally incompetent. A properly drafted power of attorney may also nominate the person you wish to serve as your guardian and conservator, in the unlikely event one is required.
Finally, the third piece of every basic estate plan should include a Last Will and Testament. Most people know that one of a will’s primary functions is to divide our property at death.
If you have minor children (in Alabama, under age 19) then you should have last will and testament in order to name guardians for them in the event that both of their natural parents die before the children reach adulthood. This can be a difficult conversation for many couples. Many feel as though they’re having to “pick favorites” between one side of the family and another. I often counsel these people that whatever hurt feelings they are trying to avoid pale in comparison to a court battle to appoint guardians for their minor children—after both of their parents have already died or become incapacitated.
As a general rule, a simple estate plan can help keep these kinds of tough decisions out of the courtroom, and in the family room. Consider updating your estate plan as one of your resolutions in the New Year.
Attend Free Workshop
Estate Planning and Asset Protection Workshop
Wednesday, January 21: Hosted by Red Oak Legal, PC: 1:30-3:30 pm at the Archibald Senior Center (MACOA) in Montgomery. This educational workshop presented by local attorney Raley L. Wiggins covers wills, trusts, powers of attorney, advance directives, living wills, probate administration, protecting assets from creditors, bankruptcy, divorce and remarriage, nursing homes, long-term care and Medicaid qualification. Registration is required.
Call 334-625-6774 today to reserve your seat or register online at www.redoaklegalpc.com.
Share With Your Friends