Amy Shelf - Counselor at Law

I don't usually write about anything actually LAW related here, but today is different.  I don't usually preach about getting your estate planning in order - I understand, completely, how difficult it is to get this stuff done.  Again, today is different.  This post is written with a supremely huge amount of compassion, but also with a clear direction: get the basics in place.

An old friend called recently.  Her brother suffered an unexpected injury and is now hospitalized.  He is in the midst of breaking up with his wife, owns a house, has student loans and other bills to pay, and had absolutely nothing in place, legally.  Things have not been going smoothly, medically or financially.  He is recovering slowly and his capacity to sign legal documents or make his own medical decisions is questionable.   Unfortunately, the family is now faced with some unpleasant and expensive prospects for helping this man deal with his life and finances, both of which continue while he is hospitalized.

The situation described above could be helped, GREATLY helped, if my friend's brother had basic financial Powers of Attorney and an advance health care directive in place.    By executing financial Powers of Attorney (often called Durable Powers of Attorney) you give someone the authority to manage your financial affairs if you are unable.  Similarly, with an Advance Health Care Directive you give someone the authority to make medical decisions for you in the event you are unable to make them for yourself.

Many people assume that spouses (or, in California, registered domestic partners) have rights to act for one another, that if you are married or registered domestic partners you have less need for a Power of Attorney or a Medical Directive.  In a number of respects, your spouse or registered domestic partner can do things on your behalf without an official, legal document in place.  Similarly, physicians or heath care providers will often respect the wishes and follow the directions of family members who are present and involved, and where there is no conflict or disagreement, even without an advance directive.

However, HOWEVER, even in the best situations there are things that cannot be done without a Power of Attorney or a court order.  Selling or mortgaging a house.  For one.  And that is usually the biggest one. 

Without a Power of Attorney, the only other option can be going to court to get order appointing an agent or authorizing a particular action.  Expensive and a lot of time and work.

I am reluctant - as an attorney - to invoke scare tactics.  In any event, I could present you with way worse in the worst-case-scenario department of things that can go wrong in the world of death and incapacity.  So think of this story not with a "you should do this or else such-and-such can happen" moral but as a reminder of how little it takes sometimes to avoid a big problem with more problems and no easy solutions, and to get yourself and your loved ones squarely into the world of simply big problems.  Quite the lesser of two evils.

We cannot avoid big problems.  We cannot ever sufficiently prepare for them legally, financially and emotionally all at once.  We can, however, take very simple steps to do damage control, to put in place the most basic of safety nets, to have those backstops in place. 

I talk to many people who avoid any sort of estate planning because the enormity of all of the decisions that we need to make when we put together a complete and customized plan.  And then there is all of the follow up to do - life insurance, retirement beneficiary designations, the difficult conversations.  It is too much!  So I invite you all to take baby steps.  Get three very simple documents in place - a Will, a Financial Power of Attorney, an Advance Health Care Directive.  Or start with one.  One is better than none.  Something is better than nothing. 

With my panic-free potlucks and workshops I can help you do all three with minimal time and cost.  Consider it the first step in completing the bigger project of having everything in place.

Leave a Reply