“I am not interested in ‘estate planning;’ I just want a Will!”
When new clients call to schedule an appointment with me, it is not uncommon for some to say: “I am not interested in ‘estate planning;’ I just want a Will!”
That statement tells me this client likely believes that the only essential estate planning they need to do is after-death planning. Why is this not the case? While a Will describes how you want your assets to pass at your death and nominates specific individuals or organizations to positions of responsibility to administer your estate (e.g. guardian, trustee, executor), all adults also need “power of attorney” documents. Power of attorney documents are “lifetime only” documents which authorize one or more people or organizations called “Agents” to manage one’s financial and/or health care matters if you are alive but unable to manage your own affairs, whether due to illness or impaired cognitive ability.
I regularly encounter people who have failed to put in place financial and health care power of attorney documents while they had capacity to do so, and who have now lost the capacity to understand and sign power of attorney documents. While the incapacitated individual him or herself may be blissfully unaware of the trouble this omission has caused, their family members and friends are left in the unenviable position of being unable to take critical planning and financial steps, all due to the lack of power of attorney documents. The reality is that financial institutions and realtors will not take instructions from even a spouse or child to sell, surrender, or retitle assets owned by an incapacitated individual if there is no written power of attorney document naming the spouse or child as Agent and enumerating explicit actions they are authorized to take. The lack of robust power of attorney documents often directly leads to very difficult circumstances and what should have been wholly avoidable frustration and added expenses for the family members and friends of these individuals, who sometimes are left with no alternative but to see guardianship.
When I meet a client who balks at the phrase “estate planning,” and insists he or she requires only a Will, I make it a point to explain that while estate planning certainly does include a Will which will provide an after-death roadmap for their affairs, it is just as critical – sometimes even more critical — that they also appoint Agents to make critical decisions about their finances and health care if they are alive but lack the capacity to communicate and/or carry out such decisions themselves.
– Ann L. Martin
(As part of the firm’s Estate Planning and Administration practice area, Ann works with individuals and couples to develop estate plans that address their needs and goals, using wills, trusts, financial powers of attorney and living wills/health care powers of attorney. In addition, Ann represents executors and trustees so they can properly and efficiently administer estates and trusts, including special needs trusts.)