QUESTION:
My parents are in their mid-to-late 80’s and my father is getting increasingly forgetful. My mother says that they had their wills drawn up back when they first got married, and that was at least 50 years ago. We have no idea where those wills are – (my father used to take care of all that stuff, but asking him now is useless) – but at this point, even if we found them, would the wills still be valid?
ASK YOUR MONEY:
The wills might be valid but what the wills state might not express their current intentions. It’s very common for me to meet with elderly clients who have wills that express what their intentions were over 20 years ago. Which most often means that the documents are very out of date. The average time people review their wills is over 20 years. Just imagine how lives and assets change over 20 years! It’s time for your parents to meet with an attorney to discuss what they need.
Wills are certainly an option, but trusts are also an option. Trusts are a type of contract. They come in many varieties but the most common estate planning trust is known as a living trust, an inter vivos trust or a revocable trust that are created by the trust-maker during life. They have a lot of great features that if properly created and funded allow lifetime control over assets and avoid probate administration. Wills are documents that go into effect after death and have no effect during a person’s life.
In addition to a will or trust (with a pour over will) it is also very important to have a durable power of attorney and health care proxy. A durable power of attorney allows the creator (the principal) to appoint another person (the agent) with the right to make financial and legal decisions on the principal’s behalf if the principal cannot or because the principal is unable to do so. A power of attorney can be effective on signing or at some later point (known as a springing power) so it only goes into effect upon your subsequent disability. A durable power of attorney is durable so that it can continue to be in effect even upon the subsequent disability of the principal. (Note that disability in this context relates to mental competency.) This is very important. Without a durable power of attorney, a court appointment of a conservator might be necessary to make these types of decisions – which is a costly and lengthy process.
The last document that is required as part of an estate plan is the health care proxy (HCP). This document allows the principal to appoint an agent/proxy for health care decisions. The HCP document allows another person to speak with medical providers regarding your care and needs and make medical decisions on their behalf. Without a health care proxy a court appointment of a guardian might be necessary. Again “ this is a costly and lengthy process most people could and should avoid.
At 80 memory problems are common but it may be a sign of dementia and it would be wise to consider long-term care needs. I would recommend contacting an attorney who deals with elder law and estate planning to update your client’s documents and discuss the various options with them.
Lastly, since your father is already forgetful I would urge them to see someone right away. If your father’s memory continues to fade he may quickly lose the capacity to sign documents. Anna Eckert Byrne, JD
