The phrase “saving your life” may conjure images of heroic rescues; the stuff Hollywood is made of. The recent adventures of Spiderman and Liam Neeson on the big screen sound much more interesting and heroic than the often dry topic of estate planning does. However, what many people fail to understand is that when it comes to our own lives (especially if Liam Neeson isn’t directly involved) estate planning has a much more direct effect on us and our personal safety than does any Brad-Pitt-battling-a-zombie-apocalypse-on-the-big-screen.
So what’s so heroic about estate planning? Isn’t it just a trust and a will? Isn’t the focus of estate planning just to decide who gets your stuff after you die? Well, that’s part of it. But not the heroic part. Much of the literature out there about estate planning has to do with information about what a trust is, how a trust avoids probate, and how a will works. Granted, these are important topics, but not heroic ones. By the time we’re worrying about probate or what your will says, you’re already dead. In other words, these topics are the Meet Joe Black of the estate planning world: interesting, informative, but no hope for a heroic end-of-movie sequence. What’s done is done.
In the world of estate planning, much more important to our own lives is the end-of-life, incapacity planning that one should do in a comprehensive estate plan. This planning should involve health care directives, financial powers of attorney, directives to physicians, nominations of guardians/conservators, elections regarding end of life procedures/wishes, and your declarations of preferences regarding assisted living or rehabilitation situations. Depending on the state where the planning is done, these elections and statements may be consolidated into two or more documents, but nonetheless, it is important to make sure each area is addressed.
This area of planning addresses not what happens once you’re dead, but once you’re incapacitated. In other words, you are still alive, but you are no longer competent to make your own decisions for yourself, perhaps due to Alzheimer’s Disease, dementia, or injury. In other words, you need to be saved. But who is to save you? Each state has a statute that puts forward a priority list of people who will be appointed by a court to be your agent/guardian/conservator, or whatever is needed, unless you have not appointed someone in your estate planning documents. Typically the first in line will be your spouse, followed by your children, who will all have equal priority if you have more than one child. In other words, once you’re incapacitated, unless you have properly planned and appointed your own hero in your estate planning documents, you will have no choice in the matter and someone you may disapprove of may gain complete control over you and your finances.
Furthermore, if you have not properly planned, not only will you have no control over who your agent is, you will have no control over the decisions that the agent makes for you. For example, you may have a closely-held belief that you do not wish to be on life support at the end of your life. However, unless you have made those elections in your healthcare directives and powers of attorney, those end-of-life decisions will be completely in the control of your agent, who may not be a person you trust or even like.
The importance of this area of estate planning, this planning for incapacity, cannot be overstated. In the humble opinion of the author, planning for incapacity is far more important than creating your transfer-on-death vehicle such as a will or trust, simply, to put it bluntly, because you’re already gone by the time those documents become important. However, it will be extremely important to you to have your wishes abided by relating to your personal care, safety, and financial security while you are still living but helpless due to a debilitating disability. Relating back to the Hollywood theme we started with, you might wish to have Batman be in charge of watching over you and your finances once you’re incapacitated, but unless you actually commit that plan to a written, valid estate plan, you may end up with The Joker.
If you do not have your estate planning completed, especially your end-of-life planning and planning for incapacity, you must do that as soon as possible. The recommendation is that each adult should have his or her end-of-life planning done ideally once they are 18, but especially once they are married and settled. The unpredictability of life mandates the necessity of this early planning. Please seek out the assistance of a qualified estate planning attorney in your area, most especially if your family dynamics are complicated. The planning must be done now, before it’s too late.
Kristin K. Woods is an attorney with the law firm of Barney McKenna & Olmstead, P.C. in St. George, Utah. Licensed to practice in Colorado, Nevada, and Utah, she focuses her practice in family law, estate planning, and bankruptcy issues.