“I work in an ICU at a hospital. Who will access my bank account and make sure my bills are paid if I become ill?”
“I never thought about who would take care of my mom if I became sick or died. Now I can’t stand not having a plan to care for her if something happens.”
“I have been putting off writing a Will for years. Now I am afraid my property will not be distributed by my wishes if I don’t do something.”
For many Americans, the Coronavirus pandemic has sparked great concern about what the future will hold if they become sick or die from Covid-19. As we all adapt to changes in the way we work, worship, and care for our families, the topic of estate planning has emerged as one key area where many families are underprepared.
If I become sick or am in an accident, what happens next?
Incapacity planning did not seem like an immediate need for most Americans before the Coronavirus pandemic, but many people young and old are now asking themselves hard questions: If I am sick in a hospital, how will my family access my bank account to pay my bills? How will they gain access to my 401K? Will the doctor allow my family to make decisions about my health? What if I don’t have family to rely on in an emergency?
In an emergency, while stress levels and emotions run high, fast access to information and resources as well as rapid decision-making can be crucial. Powers of attorney give permission for a trusted person to access your information and make critical decisions if you cannot do so yourself. If you become incapacitated, your spouse does not automatically have legal authority to access property which is not jointly owned or to manage accounts which are not jointly titled. A power of attorney for finances and property solves that problem. Healthcare scenarios in which no legal document delegates decision-making authority can be somewhat easier to maneuver, but without a healthcare power of attorney there is no guarantee that your preferred decision-maker will be the one the doctors turn to for instructions about your care. It is wise to execute power of attorney documents that grant authority to another person to make healthcare decisions and manage personal and financial affairs.
How do I choose decision-makers?
If you have never reflected on these tough questions, that’s okay. An experienced estate planning attorney will guide you through the process and help you memorialize your preferences and instructions in your comprehensive estate plan.
What is a comprehensive estate plan? At its most basic, a comprehensive estate plan is a set of documents that address planning for incapacity and planning for after death. However, it is much more than just documents; it is a legal representation of your wishes and values and is an extension of your voice when you are unable to speak or act for yourself. Ideally your estate plan should be customized for your unique situation. A comprehensive plan should address what matters most to you and account for where you and your loved ones are in your lives. Planning for a young couple with minor children is going to look very different than planning for a retired couple with ownership interests in a family farm. An experienced estate planning attorney will spend time getting to know you as an individual so that your documents are customized to strike the right balance of maintaining control and permitting flexibility in various situations.
Do I need a Will?
A Last Will and Testament is very important, although arguably powers of attorney may be more crucial in an emergency situation. While powers of attorney control what decisions are made during your life, a Will only takes effect after you pass away.
A Last Will and Testament nominates a trusted person to act as your Executor, or Personal Representative, and gives that person the ability to collect your property and distribute it according to instructions detailed in your Will. The legal terminology for dying without a Will is “intestate.” Tennessee law establishes default rules for how your property is divided among your next of kin if you die intestate, so you may feel a Will is unnecessary. But beware: the default rules for intestate distribution may not match your personal preferences, and the process of handling your intestate estate can be more difficult and costly for the loved ones you leave behind. Consult with an attorney to ensure your estate is distributed according to your wishes and is as hassle-free as possible for your remaining family.
DIY Planning: Can’t I print these documents online?
Many people turn to technology to create estate planning documents with mixed results. The tricky part of do-it-yourself planning is that the documents must be signed, witnessed, and/or notarized in a specific way to be legally valid. Many well-intentioned people download form documents but fail to complete the documents properly, making them useless in a time of need. Others complete the documents properly but include a small detail or use a legal term without understanding the significance, and that detail or legal term has unintended consequences that create problems when the documents are most needed. The payoff of receiving professional assistance is knowing that your documents will perform exactly as you want them to in a stressful and confusing emergency. An experienced attorney will help you customize documents to address your personal planning goals, reflect your core values, and give you and your family peace of mind.