You Decide or Someone Else Will

While my law practice of 40 plus years has always included estate planning, it was only the last seventeen years that my sole focus has been in this area, especially devoted with working with those with a chronic illness or aging issues. I was blessed with the opportunity to care for my grandmother for over ten years, and those years really highlighted the importance of planning and having instructions for our families to carry out those plans.


It is important that you make decisions about your estate plan. If you do not, someone else will. What do I mean by that?


I am reminded of the story about James Dean. He died very young in the 1950’s. He was alienated from his father, and his mother predeceased him. He had no will and no children.


Because Dean had no will, something called “intestate law” dictated that Dean’s father inherited everything: the one person that he was alienated from is the person who got everything he owned, plus rights to his name. Though the estate was modest at the time of Mr. Deans death ($100,000), it grew in value as his fame grew post-death. In 2014, that estate was worth over $4 million.


When I talk with families about planning, I always start with financial and healthcare powers of attorney.


Kansas is one of those states, unfortunately, that does not grant your spouse, or you as a parent, the right to make decisions for your spouse or your children (unless your children are under 18 years of age). In other words, if my wife went into the hospital, if she loses capacity, I have no inherent right to give permission to anything. Technically, I must get a guardian and conservatorship that allows me to handle my wife’s affairs.


However, if I have a healthcare and financial power of attorney, I can make decisions for my wife according to the instructions that she puts in those documents. You have a right to make the power of attorney for financial and healthcare as broad or narrow as you wish.


It is important to understand that not all financial and healthcare powers of attorney are the same. As an example, in Kansas, there are about fifteen optional powers that must be included, or they are considered excluded. Not everyone wants to grant all fifteen powers; those options need to be discussed with an attorney to see if they fit with individuals desires and goals. The documents need to reflect what you want.


Your estate is not necessarily going to be distributed as you wish. If you die without a will or a trust, your property is going to be passed under intestate law. That may or may not be what you want. In addition, the court is going to appoint someone to have control over your estate until it is wrapped up. That may or may not be the person that you want.


While we are on that subject, do you want a will (and hence probate), or a trust (that will avoid probate)? Do you have children that you need to protect or grandchildren that you want to have something? What about your business or farm?


Let us not forget about charitable goals. Do you want your church to continue to receive gifts from you should you become incapacitated, or to share in a portion of your property upon your death? Your plan should reflect what you want.


I know these are really hard decisions. But I know they are really important decisions too.


I was very lucky with my grandmother; though taking over her care occurred suddenly (my mom died unexpectedly and she had been caring for my mom) my grandmother still had capacity and I was able to visit with her and fix up her previous, poor plan. This enabled me to follow her wishes until the end.


So, you decide or someone else will. I encourage you to speak with an elder care attorney that will help you navigate and determine your wishes.