In talking about estate plans, much of the discussion tends to focus on children. How much should they inherit and when, what kinds of trusts do they need, who should serve as guardian in the event of tragedy, etc.
What about childless couples, though? That’s a question The Wall Street Journal recently asked, and I think it’s an important point for discussion. Even for people who don’t have kids now and may never have them in the future, estate planning is too imperative to simply shrug off.
The Journal breaks it down like this. People without kids have a primary checklist with just two boxes on it:
- Set up a distribution plan to determine who gets your property when you die.
- Assign someone to make medical and financial decisions on your behalf should you ever become incapacitated.
That’s a rather barebones approach to nonparent estate planning, but even those two items can be trickier — and more critical — than they seem.
As an estate planning attorney, I could accomplish those two tasks for my clients by drafting a will and a healthcare directive for each spouse according to their needs, but that could still leave the door open for unintended consequences.
Without a trust, for example, assets may be subject to costly and time-consuming probate when they pass to relatives.
Whatever your approach, it’s important for childless couples to remember that even though they don’t have kids, they do have relatives, friends, and other people they care about. When they die, their assets are going to go somewhere.
Without a strategic estate plan in place, it’s possible for one whole side of the family to be shut out altogether. Often, the default statutory procedures render rather undesirable distributions. But with some careful forethought, spouses can avoid those outcomes and rest easy, knowing that their best intentions are protected.
Many of us have signed a health care proxy form — a legal document in which we appoint someone to make medical decisions for us if we become incapacitated.
But in Massachusetts, and in many other states, there is another form we may want to sign. It is called a MOLST (Medical Order for Life-Sustaining Treatment).
Similar to a prescription, it contains instructions from a doctor to other health care professionals such as emergency responders and nurses about what life-sustaining treatments to try — or not try — on a patient, based on that patient’s wishes.
These treatments might include such things as CPR. Health professionals are required to try such treatments unless there is a MOLST order in place.
If the person is mentally incapacitated, the MOLST order can be signed by the person’s health care agent, named in the proxy.
Even if the person has a DNR or “do not resuscitate” order in place, a MOLST order may be signed. It can cover resuscitation and other forms of life-sustaining treatments.
If you have signed a MOLST and want to change your mind, you can still ask for treatment and/or have the order voided.
The order should be kept in a place where it can easily be found such as on the refrigerator and may want to carry a copy when leaving the house.
More information on MOLST can be found here:
If you have spent time online or watching the news recently, you have probably heard about Casey Kasem’s disturbing final weeks. The legendary host of American Top 40 and longtime voice of Shaggy from Scooby Doo passed away last weekend at the age of 82.
Photo taken at the 41st Emmy Awards 9/17/89. Photo by Alan Light. (Photo credit: Wikipedia)
There are so many lessons to be learned from Casey’s last weeks that it is hard to know where to begin. I have provided two links to articles about recent developments. The Forbes article discusses in detail the battle between Casey’s second wife, Jean, and his daughter Kerri over control of Casey’s care. The second article, from Find Law, discusses some of the estate planning tools and strategies involved in the case. In this post, I would like to focus on the latter article.
Health Care Proxy/Advance Healthcare Directive/Living Will. This document allows a person to give authority to another adult to make healthcare decisions on his or her behalf in the event of incapacity, and specify the types of treatment desired in an end of life situation. Casey signed such a directive in 2007, placing his daughter Kerri and her husband in charge of making healthcare decisions for him.
Power of Attorney. A Power of Attorney is different from an Advance Healthcare Directive, but it too authorizes another adult to make legal and financial decisions on behalf of an incapacitated person. Some Power of Attorney documents may include authority to make health care decisions, which can lead to conflict between the documents. In 2011, Casey designated his wife Jean as Power of Attorney, and this superseded Casey’s 2007 Advance Healthcare Directive. This illustrates the problem of naming separate parties, at separate times, to make decisions on one’s behalf.
Guardianship and Conservatorship. Casey’s daughter was able to successfully argue for and obtain Conservatorship a month before Casey’s death. This gave her control over Casey’s financial and medical decisions. (It is important to note that in Massachusetts, Conservatorship names a person to make financial decisions on another’s behalf, while Guardianship can authorize a person to make medical decisions.) In this way, she was able to enforce Casey’s Advance Healthcare Directive, which stipulated that he did not wish to be kept alive if doing so “would result in a mere biological existence.”
While it is advisable to be more specific in making one’s Advance Healthcare Directive, Casey’s condition was so dire that his doctor concluded that continuing artificial nutrition and hydration would “at best prolong the dying process for him and certainly add suffering to an already terribly uncomfortable dying process.”
It’s a sad story, one that will no doubt get even uglier as the parties battle over Casey’s estate and allegations of elder abuse. But hopefully, it will serve as a reminder about the importance of open communication between family members and the need for comprehensive, consistent end-of-life planning.
In an article, Pat Mertz Esswein explains how her mother took all the right steps in laying out her estate plan, so that when she passed nothing was left undone and no one was left to deal with unanswered questions.
(Photo credit: footloosiety)
Pat’s mom kept her will, power of attorney, and advanced directives accurate and up-to-date, and stored them together in a large white envelope. After a health scare in 2008, during which the family could not find the envelope, Pat labeled it “THIS IS IT” so that there would be no confusion.
In addition, after 2008, Pat’s mom registered her power of attorney at the county courthouse, and added her as a co-signatory on her safe-deposit box, so that Pat could start planning and organizing her mom’s financial affairs while she could still communicate her wishes. The experience was helpful later on when Pat was tasked with being executor of her mom’s estate.
Pat’s mom was clear about what kind of funeral she wanted, including specifics such as the dress she wanted to be buried in and who should serve as the pallbearers. Pat’s mom made it simple to contact friends and relatives with up-to-date holiday and email lists. Also, she left a list of her “team,” including her lawyer, accountant, stockbroker, priest, and insurance agent. In her will, Pat’s mom even left her daughters some advice and instruction saying, “Please do not have any hard feelings over things. Your relationship as sisters is far more important.”