Estate planners and elder law attorneys are regularly confronted with clients in a crisis situation. The critical element for handling many of these cases is whether the client took those vital steps necessary to plan ahead before the crisis. Was there any planning at all? Were the planning documents prepared properly? Do the choices made earlier still reflect the current wishes? Are the documents legally valid?
It’s not uncommon to find people in their 60s, 70s, and even 80s who have done no planning. If they’re still mentally competent, they can set up a plan now. The problem cases are when there’s an accident, a sudden stroke, the rapid onset of dementia, or death. Who takes care of things for the individual, and what happens to the family? The family can always ask the government to intervene, but subjecting your family to Conservatorship (Guardianship) proceedings in court can be a very tortuous and costly experience, and the end result may not be what anyone really wanted.
Making advance arrangements for other people to make your decisions for you can save your family a lot of anguish, time, and money. You’re also more likely to get the end result you had hoped for in the event of a crisis.
Before a crisis hits, people should consider their long-term care needs and their family dynamics. If family members have squabbles or resentment now, that will likely intensify in a crisis situation. Frequently, an individual doesn’t want to offend a sibling or adult child by naming someone else to be the responsible person, so they name co-trustees for their trust, co-executors for their will, and co-agents for their durable power of attorney. The naming of two people to make the decisions together is an idea that frequently results in litigation and family members becoming enemies of each other when they disagree. It’s a risky option.
When it comes to family circumstances, families are always changing — births, deaths, divorces, second marriages, and self-destructive behaviors by heirs, are common issues. Is your son-in-law still the right person to make decisions for you even if he’s in the middle of a nasty divorce from your daughter? What if your financially astute mother is in the early stages of dementia when it comes time to make decisions that will affect you and your children?
Our laws are quite specific regarding the legal requirements of your planning documents. The do-it-yourself approach often leaves people with documents that are not valid, or are unclear as to the individual’s wishes. The use of do-it-yourself documents in estate planning is generally considered to be the number one reason for the growth of probate and estate litigation. You might save a few thousand dollars up front, but then your family burns through a few hundred thousand dollars in litigation expenses. It happens regularly.
If you haven’t yet arranged for others to make the necessary financial and health decisions for you, take the time to do it now. If you don’t have a legally valid document establishing the distribution of your assets upon your death, take the time to do it now — and do it all properly. You owe it to yourself and to your loved ones to get it done, and to get it done right. Lack of planning, and errors in planning, can be very costly for everyone.