In the estate planning law practice, we often see clients and prospective clients who mean well and intend to get their estate documents in order. Unfortunately, all too often the intentions do not amount to “follow-through” and the price can be significant. This is especially true in the case of a crisis such as incapacity, incompetence or death.
In estate planning, attorneys often recommend to their clients that they have not only a Will or Trust in place but also a Living Will, a Power of Attorney for Healthcare and a Durable Power of Attorney. The Will and/or Trust can address the handling of the person’s estate and assets in case of death. They can also address who is to be in charge of the estate if a person dies. The Living Will can address the person’s intentions in the event of a terminal or end-stage condition or a permanent vegetative state. The POA of Healthcare can authorize and appoint a person to speak with doctors and make medical decisions. The durable POA appoints a person who can address personal, business and financial matters.
Having all of these in place provides comprehensive protection in the event of death or incapacity. However, in order to execute these documents, the person needs to be competent. If they’re seriously ill or injured…or dead, they obviously are not competent to sign documents. Unfortunately, clients often wait until a crisis and then it may be too late to get these instruments in place. If the person is too ill, injured or dead, they can’t sign their estate documents at that point. The only resolution may be to resort to court action. This can take time, incur cost and be a real hassle.
If a person dies or if they become incompetent and they have no current estate documents in place, the consequences can be multiple. The situation can cause unnecessary delay, expense and frustration. Perhaps an example will demonstrate this best.
Take a situation where a person suffers a severe heart attack and is taken to the hospital unconscious. If they have a Power of Attorney for Healthcare (which should include a HIPAA authorization), then the person’s designated spokesman can speak with the doctors and make medical decisions. If there is no such POA, the hospital and staff may not discuss the person’s situation and may not take directions. Similarly, if there is a Durable POA, the appointed person can pay bills and take other necessary action on behalf of the sick person. In that situation, a court ordered guardianship may have to be established. If the person dies but has a Will, or better yet, a Trust, then the person’s assets can be dealt with fairly easily. If there is no Will or Trust, then the assets will still be addressed but it will take longer, cause more expense and more aggravation.
So why do people drag their feet and not get their estate documents prepared and up-to-date? The reasons can be multiple. For some it is due to avoidance–they just don’t want to think about it. For others, it is denial–that won’t happen to me. Still others it is cost–although the cost of not taking action is far worse. Whatever the reason, everyone should take the time to address their estate…before it’s too late!