The importance of making end of life preparations cannot be stressed enough. Many put off making these plans thinking there is always time to do it later. The sad reality is that none of us are guaranteed time. Others may be bothered by the thought of death itself and allow this to paralyze them when it comes to making plans and getting their affairs in order for the end of life. However, most of these same people have wishes and thoughts about where and to whom their assets are distributed. Many of them also have ideas about what they do and do not wish to have happen when their life ends. Lack of preparation and planning means that these wishes likely will not be honored. In addition, it causes additional strain and stress on the people who are left to sort out the affairs. An example of this is the story of Sandra.
Sandra was a teacher who had been retired for several years. She was aging alone. She never married and had no family around. She did have a small circle of close friends. Several years after retirement, Sandra's health progressively declined and she had more and more difficulty caring for herself. After a few years, Sandra passed away in her home.
While Sandra had an elderly brother, he was well off and Sandra was not close to his children, her niece and nephew. Previously, she had conversations with a handful of her friends telling them her wishes for the possessions and assets she had. Sandra wanted to leave her estate to her friends and make a gift of money to the university she attended and some charities that she volunteered for over the years.
Because of these conversations, these friends each thought she had made the proper preparations to ensure these wishes would be followed. Unfortunately, Sandra had none of the necessary end of life documents that would allow her wishes to be followed. Sandra's brother had passed away a few months before her. Her friends were left to try to piece together a puzzle that only had many missing pieces. Her burial was prolonged and what she did have after paying expenses to settle the estate and bury her did not end up where Sandra wanted. With her brother having died before her, Sandra's niece and nephew ended up inheriting her estate under the state's intestacy law, not her friends and the charities Sandra wanted to support. This scenario can, however, be avoided.
If you or your elderly loved one have not made end of life preparations, make time to do so soon. An elder law attorney can help guide you in what you should be doing, and can make sure the proper documents are in place to carry out your wishes regarding your health, care you want (or don't want) to receive, and who should receive your money and possessions.
The first key document to be sure you have is a will or a living trust. A will allows you to specify where your money and possessions should go upon your passing. It also allows you to choose a personal representative ("executor") of the estate. The personal representative will take care of managing the estate, paying debts, and distributing property as specified. A will only takes effect upon your death.
A living trust does everything a will can do, but also allows for you to choose someone to manage your assets if you become incapacitated because it is effective during your lifetime. A living trust also provides privacy. There are numerous other advantages to a living trust that can be explored with the help of an attorney.
A living will and health care power of attorney are two additional documents that take effect while you are alive. A living will specifies your wishes for end-of-life medical care. For example, you can specify whether you want to be kept alive by artificial means if you are in a terminal state. A health care power of attorney provides for someone to make health care decisions for you, in case you aren't able to make decisions yourself. Both of these documents outline your wishes about medical treatment and care when you can't make them for yourself, so it's important to seek legal guidance to make sure these documents are drafted properly.
A financial power of attorney should be in the plan as well. A financial power of attorney names an agent to handle your finances in the event you are no longer able to. An agent can open and close bank accounts, write checks, and sell property if you choose to allow them the authority to do so. Like the health care power of attorney, the financial power of attorney should be created with legal advice to make sure your wishes regarding your finances are properly documented.
Having an estate plan is necessary for you to have a say in what happens if you become sick and cannot make decisions for yourself, and to determine what happens with your money and your belongings after death. An estate plan also helps those who are left to deal with the estate to do so in a more simple and straightforward manner.
If you have any questions about something you have read or would like additional information, please feel free to contact me. Andrew Byers is an estate planning and elder law attorney in Troy, Michigan.