Choosing the people who will handle your affairs while you are seriously ill or when you are deceased is a deeply personal decision. You need to decide whom you trust to honor your wishes, determine what medical treatments you will or will not have, take care of your money and, possibly, your children. And you need to review and update these decisions periodically.
We tend to focus a lot on the documents in the estate plan as if those documents are the end of the story. Often they are. However, there is a human element that cannot be ignored. If you have not reviewed your documents in several years, you should verify that they still meet your goals, but you should also verify that the people you have chosen to carry out those goals are willing to accept the responsibility.
Deciding to accept the responsibility to handle someone else’s medical and financial affairs is an equally personal decision. Often clients will create an estate plan and think their job is over. If their preferences do not change, then their estate plan probably does not need to change, right? However, the people designated to be fiduciaries (Power of Attorney, Trustee, Guardian, etc.) may have changed their preferences. Continuing to have frank conversations with the people who will handle your life affairs, if you are incapacitated, or estate or trust once you are deceased about whether they are willing to do so is as important as creating the documents appointing those people.
Recently a woman called me from the Northern California bay area. Her father, who is in his nineties and lives in San Diego County, had gone into a coma and the hospital notified his designated health care power of attorney of the situation. The designated health care power of attorney declined the appointment and sent a copy of the advance health care directive down the line until it came to the woman on the phone. Our conversation went something like this:
Her: “I live in the bay area. I can’t get down there to see him or make decisions. I’m in my 70s myself and I live on a fixed income. My husband is in his 80s. I can’t take care of this stuff.”
Me: “Well who is next on the list?”
Her: “I’m the last one.”
We talked some more about what other estate planning documents had been passed to her, what her responsibilities could be, and about the fact that, ultimately, she did not have to accept the responsibility if she really did not want to. Unfortunately, she really didn’t. While I could feel her grappling with her responsibility to her parent, she clearly had her own issues going on in her own life over 500 miles away from where her parent was being hospitalized. She said, “I never even knew this document existed. He never warned me.”
Although in this case the client was never warned at all, it is often true that a potential fiduciary is asked to serve as a power of attorney or trustee and then moves or has his or her own children or makes any number of changes that prevent him from being willing or able to actually accept the appointment. This is, of course, part of why we choose alternate agents from the outset. But as years or especially decades go by from the creation of the original document, it is important to communicate with your potential fiduciaries to make sure that they remember they are appointed and that they are willing to act if the time comes.
Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things…
FREE REPORT: This complimentary report, focused on Estate Planning, is comprised of many of Mr. Miller’s articles from his long running column for the largest regional newspaper in San Diego County. This report will guide you through the questions surrounding getting your estate planning in order, and includes the following articles