I hope you all have had an enjoyable holiday and had time to relax with your family and friends. As you make your New Year’s resolutions, consider what will happen to you and your family if you are not able to make your own decisions, due to severe illness, dementia or other reason. Do you know who will handle your affairs? According to the Alzheimer’s Association, currently 1 out of every 3 seniors over 65 dies with Alzheimer’s disease or another form of dementia^1. And these numbers continue to rise, having increased 89% since 2000. So while you might remain mentally sharp until the end of your days, it is far more likely that you will need assistance handling your affairs.

The best way to handle this possibility is to identify a person or people whom you trust completely and are willing to take on the responsibility of your finances and health when you are no longer able. Once you’ve identified this person, have a qualified attorney draft a Power of Attorney and a Healthcare Directive for you.

I recommend this action because if you don’t have a POA or health directive in place, it will be costly and time consuming for anyone to get and retain permission to take care of you.  First, your family or a friend must petition the Probate Judge of the county in which you reside to become you Conservator and/or Guardian and pay the court fee (varies by county, in Bartow its almost $600). A Conservator manages your money, real estate, and personal property.  A Guardian decides where you live, how you are cared for and what medical treatments doctors should give to you.

Once the petition is filed, an official notification of their request will be delivered to you and your family by the Sheriff’s office. Next, two (2) doctors must examine you and declare that you are incapacitated. Finally, the Probate Judge must hear all of the evidence and decide whether or not to grant the request. If the request is granted, then the Conservator must post a bond (that will pay if he or she runs off with your money), submit an inventory of all of your worldly possessions, along with annual reports on your physical condition and status of your income and disbursement records.

A properly executed POA and Healthcare Directive avoids all of the above. A POA appoints one or more trusted individuals to be your “Attorney in Fact”, i.e. they can sign any legal documents you could. For example, your Attorney in Fact, or Agent, can sign your checks, sell your stock or transfer your car. In addition, he or she could potentially sell your home or other property. Please note that this document is active the day you sign it, unless otherwise specified. Therefore, I recommend that you ONLY give this power to someone you trust completely and keep it until needed in a safe place (like a safety deposit box).

A Healthcare Directive appoints someone to make your medical decisions (including those that could result in death) once you have become mentally and physically unable.  Your Agent has full authority to act or your behalf once a doctor has determined you lack the ability to make your own decisions.

Additionally, I strongly recommend that you have a qualified attorney draft your Last Will and Testament. A valid will avoids confusion by documenting EXACTLY what you want. I also strongly recommend sitting down with your family and letting them know your exact plans and let them read your legal documents, if possible.I have seen many a family squabble after the death of a loved one because everyone has a different idea about what you want, inevitably colored by what they want personally.

Peace of mind is a great blessing. So is knowing you and your family are protected. Start the New Year off right and take care of these important matters NOW!

1. Alzheimer’s Association, Alzheimer’s Disease Facts and Figures (2017),

https://www.alz.org/mglc/in_my_community_60862.asp

Estate planning is the process of creating all the legal documents necessary to ensure your assets and your care are handled according to your wishes when you die or become incapacitated. Typical documents include a Will, Guardianship, Power of Attorney and Health Care Directive but may also include insurance and other financial planning documents as needed.  The sobering truth is that if you don’t plan your estate according to your wishes then the state will distribute your estate as it wishes.

Despite this fact, 56% of American adults do not have a Will or other estate planning documents in place, according to 2011 LexisNexis survey.  Many Americans believe that they do not need estate planning.  They think the process is too complicated, expensive and time consuming.  Many prepare online wills, which are not comprehensive and always leave out key provisions. Most do not realize that incomplete or lack of estate planning will cost them and their heirs thousands of dollars and leave them without the care they or their children need.

If you do not have an estate plan, consider this:

1. Only 1/3 of your property will go to your spouse, the other 2/3 will go to your children. If your house is in your name alone and you die before your spouse, your home will have to be sold to pay your children their share, leaving your spouse without a home. A properly executed Will avoids this problem.
2. If you have children under 18, a court will decide who raises your children and controls their money.  This process can be a very time consuming and costly. A Will prepared by an experienced attorney can avoid all of this by naming a Guardian to care for your children and naming a Trustee to manage their money.
3. If you are incapacitated, no one can manage your assets and make decisions for you until the Probate Court has declared you incapacitated and appointed a guardian. Appointing a Guardian for you can be a very difficult, expensive and time-consuming process, during which time you are very vulnerable and anyone can take advantage of you. Additionally, important bills may be left unpaid.  You also have no input over who has control over you and your care. A Durable Power of Attorney for Property appoints the person you’d like to manage your affairs when you are no longer able.
4. When you are incapacitated, your health care decisions are left up to the doctor in consultation with your family.  A Healthcare Directive allows a person that you trust make these important decisions.  In addition, your family will be comforted to know just how you feel about continuing or dis-continuing life support.

No man knows the day or the hour of his death, or when or if a disabling accident will occur.  A properly prepared estate plan insures that others will follow your wishes and protect you from unethical or deceitful relatives and “friends”. In addition, it will minimize taxes and allow you to direct your final medical care. Thus, estate planning greatly reduces the financial and mental stress a sudden death or incapacitating tragedy has on your family. So the choice is yours – pay an experienced estate planning attorney a small fee now and have total control over how your care and assets are handled, or pay another attorney a whole lot more later for limited control.