A Plan that Makes a Difference

Everyone talks about the need for planning, estate planning and long term care planning; and planning is very, very important. However, the focus needs to be on “effective” planning to accomplish specific goals, and not just planning. We, as estate and elder law planners, can assist a client with all the appropriate documents for an estate/elder law plan, but, if the people chosen to manage a client’s affairs during life or after death will be mired in conflict, or if a lack of communication about the plan results in resentment or conflict among the beneficiaries, the client’s goals will not be met. There will be

family discord and hardships despite the plan. And, in these times when people are living longer, any discord or hardship directly affects the client and his or her ability to age peacefully.

Admittedly, when a person becomes incapacitated or dies, it is stressful and can exacerbate long standing issues among family members. This stress can lead to conflict in the form of dueling powers of attorney and health care proxies, conflicting applications for guardianship, denying access to loved ones, Will contests and more. Many times the paths to conflict began long ago when perhaps

parents decided to treat children differently because of their perceived different needs. For example, the parents may have allowed one child to live at home rent free. The child may have assisted with the parent’s care, but now that the parents are deceased or in a nursing home, what should be done for the child who remains in the home and cannot pay rent or the carrying charges? If the parents left only Wills leaving everything to their children equally after they die, would this be “effective” planning? Absolutely not.

1Choose an estate/elderplanning attorney with whomyou can connect, and be open/transparent with that attorneyas to all “issues” that are likely to create conflict in the future. He or she will be a strong advocate for you and your plan.

2.Implement your plan when you are healthy and able to doit yourself without majorsupport or approval fromrelatives.

3Choose your proposed fiduciaries (agent under powerof attorney, health care proxy,executor, trustee) carefully,and communicate your plan to

them and to your beneficiaries. Be clear about your wishes and instructions. You may need to appoint non-family members to be your fiduciaries. Do not give your beneficiaries unrealistic expectations about your estate, as reliance on an inheritance generally leads to significant difficulties.

4Try to resolve as manyknown “issues” as possiblethrough

communicationand transparency withyour beneficiaries. Youmight suggest mediation to your loved ones as a way to resolve issues. Your estate /

elder planning attorney will be there to support you. Take steps in your planning that minimize the need to turn to loved ones as a way to resolve issues. Your estate/elder planning attorney will be there to support you.

5Take steps in your planning thatminimize the need to turn tothe courts to enforce yourwishes. For example, have inplace a current, durable, Power of Attorney and Health Care Proxy so that you can avoid guardianship if you become incapacitated. Create a lifetime trust which can allow for administration of your assets before your death and avoid probate of your Will after your death. Also, generally, it is more difficult for a family member to contest a trust than a Will. You also might want to consider an incontestability clause in your Will or trust that provides that your beneficiary can lose his/her inheritance if he/she unsuccessfully challenges the Will or trust.

6Take the time to trulyunderstand how your planworks so there are no surprises.For example, make sure youunderstand how joint owners ofassets or direct beneficiaries of accounts differ from beneficiaries under your Will,

and what a “distributee” or “heir” is versus a beneficiary.

7As the distribution of tangiblepersonal

property is often asource of significant conflict,consider including in your planthe following:

Making gifts during lifetime; Marking items with beneficiaries’ names; or Preparing a memorandum (not legally binding but helpful to beneficiaries) of whom you want to receive

which items.

In the case of a second marriage,a prenuptial or post nuptialagreement can help to reduceconflicts.

9Consider making your ownfuneral or burial prearrangementsor appoint an anagent for making thosearrangements, as funeral and

burial arrangements can also be a source of conflict. So with all of this thorough background work done, you and your attorney can then decide what documents are needed to implement your plan. For the most typical list of documents see the list on the following page.

The road to creating and implementing an “effective” estate and elder care plan can be a difficult one. However, it is possible that with the support and expertise of the right estate/elder law planning attorney to assist and guide you, your goals can be met and conflict can be minimized and addressed. The investment of time and money is well worth the benefits of an Effective Plan.

Estate and Elder Care Planning Documents to Consider

Typically, the list of possible documents includes:

a. Last Will & Testament, with or without a testamentary trust; b. Revocable Living Trust (avoids probate and is more difficult to contest than a Will); c. Irrevocable Trust (generally for estate tax and Medicaid or asset preservation planning); d. Durable Power of Attorney with or without Statutory Gift Rider (appoints a financial agent and allows agent to implement estate and/or Medicaid and asset preservation planning); e. Health Care Proxy (appoints a medical agent); f. Living Will, MOLST, or Five Wishes (expresses your wishes about end of life decision making); g. Appointment of an Agent for Burial/Final