While the holidays can be one of the most hectic times of year, they also are one of the few times that busy families have a chance to come together and connect. And once the food and festivities are over, there’s that rare opportunity to talk openly about some important issues that affect everyone at the dinner table. Topics that go to the heart of what family is all about – being there for each other when the going gets tough. No one likes to think of parents aging and not being able to care for themselves, or a family member being in a life or death situation, but these things do happen and proper legal planning can make the hard times a lot easier. You really have to take it even a step further – loving, close knit families have been torn apart by a lack of clear direction on how to handle the most difficult types of situations. But you can avoid that happening in your family.
Documents such as a Will are key to a family’s security. A Will is the legal document that makes clear what someone’s intentions are if they pass away. A Will sets out who is in charge of handling the paperwork (that’s the Executor or Executrix), it breaks down who gets what (those are the beneficiaries) and it also dictates who will care for any minor children that suddenly are left without a parent. Imagine the case of two young parents who are in an accident. If they don’t have Wills, family members are left wondering (and in many cases fighting over) who should be taking care of the children, who should be managing the money left to those children, and who should decide which assets are to be sold or kept? Even if you don’t have many assets, you wouldn’t want some judge who never knew you and doesn’t know your family members to make these types of decisions! You want to make those decisions, and you should be making them with the blessings of those people you are choosing to take on the kinds of roles we just mentioned.
The issue of what would happen if you suddenly were no longer around is a tough subject to bring up, but the specifics need to be discussed. No one says you have to tell everyone in your family what your Will says, you may be afraid the people you have not chosen will be hurt. That’s fine and in many cases prudent. But you absolutely should be discussing your wishes with the people who would be involved should the unthinkable ever happen. Make sure they are up for the responsibility! You want honesty – if the person you choose feels he or she can’t or don’t want to do it, better you know now. For your sake and theirs. There is nothing worse than putting a family member in a position they feel obligated but uncomfortable handling.
This is especially true about someone who is chosen to make life and death healthcare decisions for a family member. Being a “Healthcare Proxy” for someone else is a position that can’t be taken lightly. The Person you’ve named as your Healthcare Proxy needs to feel he/she can be objective enough to carry out your wishes if you aren’t able to communicate them yourself. If you want to know for sure that the person you’ve chosen is the right for the job, talk to him or her now! Then make sure your paperwork is drafted correctly and legally spells out who has the authority to make healthcare decisions for you if you just aren’t capable of making them yourself, as well as what your personal intent is with regards to extraordinary life-sustaining measures.
Power of Attorney
There also are important legal and financial decisions that might need to be made. A Power of Attorney is a document you can have that gives someone else the authority to handle your affairs if you aren’t able to take care of things yourself. It can be drafted so that the person you name can manage your affairs on your behalf even if you are competent, but just aren’t up to it or available to do so. There are many ways a Power of Attorney can be structured, so be clear with your attorney who is drafting it and make sure things read just the way you want them to. But remember, the best drafted document is only as good as the person who executes it – and that person needs to be up for the job and competent to handle the tasks at hand.
No one feels comfortable bringing up the topic
You may be thinking that addressing these types of issues is pretty straight forward when someone is taking the initiative to make sure these documents are in place for themselves. But what about a situation where one or more family members are concerned because another family member isn’t taking the initiative or just refuses to think about it? That scenario is a very tough and very common situation. Only too often there are family members concerned that an aging parent or Aunt or Uncle doesn’t have their affairs in order, but no one feels comfortable bringing up the topic. Sometimes, even if the family has brought up the topic, they are stonewalled because the elderly relative responds by saying something to the effect of “oh, I won’t care by then so don’t you worry, “or “I know you will do whatever is in my best interest…I trust you!”
The best way to address this type of situation is to come up with a plan that gently but firmly explains to your relative that not only is it their best interest to have their wishes clearly and legally memorialized in writing, it is in every other member of the family’s best interest too. Point out that if people become sick or incompetent or die without having the right legal paperwork in place, by law family members have to seek the court’s intervention. Explain to your aging parent, aunt, uncle or sibling that if they don’t execute the necessary estate planning paperwork, the family will be forced to go to court – a process that is very stressful, very time consuming and can be very costly. Make it clear that you need their help now, so that you can help them later on should they ever need it.