Trick or Treat Estate Planning

Here is a scary story that I have heard over and over again. Tom has been stricken by a sudden illness and has become incapacitated. Tom is in the hospital.  It appears that he may never regain his mental faculties.  He has a son with his own disabilities.  Tom’s health and assets need to be managed and a plan is also needed to protect Tom’s son. Tom’s sister, Becky, has searched for his Health Care Proxy, Power of Attorney, Last Will and Testament or Living Trust. She could not find these advance directives because Tom never got around to doing any planning to protect himself and his son.   A guardianship proceeding is needed so that someone has authority to take care of Tom and to protect and manage his assets. Tom lives several hours away from Becky. Hiring a lawyer and preparing for the guardianship proceeding means that Beck will need to spend many hours away from her home, family and job in order to protect her brother and nephew.

The trick of not having created an estate plan or elder care plan results in anxiety for family members, confusion as to what Tom would want Beck to do on his behalf, guilt by Becky that she is not caring for Tom, his son or his assets in the manner that Tom would want. The trick also results in a large expense to cover all the various costs of the guardianship proceeding that is necessary. The expenses and continued reporting to the court about the status of Tom’s assets and condition will continue in future years. The guardianship costs will probably be much higher than the cost to create a plan before a crisis. Of course, with a guardianship the court selects the guardian, not Tom. Tom did not get along with Becky. His cousin, George, would have been his choice of agent to act on his behalf. The court was not aware of this and eventually appoints Becky as Tom’s guardian. With a guardianship the court has to approve any elder care plan that the guardian puts into place.  Because Tom did not create an estate plan, after he passes away his assets will be transferred according to New York State rules rather than according to Tom’s wishes.

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There is no need for the scary story. You see, Tom treated himself and his family to an estate plan and elder care plan of his own choosing and design. He selected his agents and empowered them to act on his behalf to make health care choices, asset management choices and personal decisions for him. Tom’s agent, cousin George, was someone in whom Tom had trust. George had an opportunity to learn about Tom’s plan and to understand it before there was any need to act on Tom’s behalf. When Tom was stricken George had  confidence that he could do his best to follow Tom’s wishes and set Tom’s plans into action.

Tom had established a means to transfer assets to loved ones and protect his son so that his son, who has special needs, will get the care he needs well into the future. Tom had taken the opportunity to shape his elder care plan and estate plan so that it best fit his circumstances and his family’s needs. George had all the tools he needed to make choices on Tom’s behalf.  George did not no need to go to court in order to litigate a guardianship and he had no need to report to the court on Tom’s condition or on the state of Tom’s assets in the years to come.

George was sad that his cousin Tom had become ill.  He had a lot to do to oversee Tom’s care and manage his assets but, he did not have to worry about what he was supposed to do because there was a plan. Tom’s son’s needs will continue to be taken care of the way that Tom wanted. Becky, Tom’s sister, had become very anxious about what she needed to do to help her brother until she learned Tom had a plan already in place when he became ill. She was relieved when she learned about Tom’s advance planning because she did not have to take on the responsibility of making choices for her brother, while not knowing what he would have wanted her to do. Becky thought that maybe it was time to find a way to patch up her relationship with Tom.

This Halloween you can decide whether your family is in danger of getting the trick of if you will give them a treat by doing estate planning or elder care planning.