Easier Than a Root Canal
One of my clients, after signing her estate documents, said, “I was at the dentist last week, and this was easier than my root canal.”
For some people, thinking about an estate plan can be painful. A few just don’t like seeing a lawyer – and that’s okay. But In my law practice, I find that many people put off doing their estate plans due to misconceptions about the legal estate documents.
“I don’t want to sign a power of attorney, because I don’t want someone else to make decisions for me. I want to make my own decisions.” The sad truth is that if you should happen to become incapacitated through illness or accident, someone will have to make decisions for you. If you sign a power of attorney, you decide who that someone will be. Even so, that person still cannot go against your wishes.
Another thing I often hear when adult children come into my office to get a power of attorney or guardianship over their parents: “I need the guardianship so that I can make my parent leave her home and move someplace safe.” Not true. Even if you are unable to make decisions or manage your finances, the law states that the person you name in a power of attorney is required to make the decisions you would make if you were able. That means that if you tell that person that you never want to live in a nursing home, they cannot use the power of attorney to move you into one.
So, what happens if you don’t sign a power of attorney and you have an accident or get sick and are temporarily or permanently unable to manage things yourself? The alternative to a power of attorney is often a guardianship. A guardianship is a process where someone seeks to get a judgment that you are incapacitated and can no longer manage your affairs. You don’t get to say who that person would be.
Guardianship is a court procedure that is expensive, and it’s public. If the guardianship is granted, your guardian must periodically report to the court on things like changes in your physical or mental condition, finances or residence. The guardian must get court permission and cannot, for instance, sell or mortgage real estate without going to court. A guardianship often takes away rights like your right to vote or the right to get married.
One thing I love to hear is when the loved ones of an incapacitated elder come into my office and say: “Mom organized everything. We didn’t have to worry about a thing. She let us know exactly what she wants, and she signed documents that made sure we could do exactly what she wants.” They often proudly say that it is a gift to them from their elder loved one.
Plan ahead. It can be smart and painless.
