Authored by: Olivia R. Holcombe-Volke, J.D. – Partner and Senior Estate Planning Attorney – Elville and Associates, P.C.
Sometimes called a Letter of Intent, a Letter of Instruction, a Letter of Desires – Regardless of the Title, the Import is the Point
Imagine – as unpleasant as it is to do so – that you are no longer able to give voice to your thoughts, feelings, intentions, knowledge, experience, or preferences. Imagine that this happens while you are still alive, but due to incapacity of some sort, you are no longer able to communicate. And of course, after death, your ability to express anything will be mightily limited (the purported abilities of the Ouija board – invented by one of Maryland’s own(!) – notwithstanding).
The fact is, there will come a time when you are not the you that you are today. Is there anything – any information – that you want to be sure is known, in that event?
Why a Letter of Wishes is Important
If you have already done the vital work to put an estate plan in place, to make certain that your affairs are in order, if and when this eventuality takes place? Good. If you have not gotten around to it yet, due to cost, lack of available time, or feelings that it is not necessary for you? With the utmost compassion and understanding, I, as an estate planning attorney, will simply say: you need to. At a minimum, you need to have an Advance Directive, Financial Power of Attorney, and Last Will and Testament in place. Perhaps some form of Trust planning is right for your circumstances, whether a Revocable Trust, Irrevocable Trust, or Supplemental Needs Trust, or some combination thereof. All of this depends upon your particulars, but the point is that you need to have a plan in place, documented by the necessary legal documents to effectuate the plan, when necessary.
But there is more. Beyond the bare legal documents themselves – that is, those documents that are required by statute in order to effectively empower another person to act as your healthcare agent, your financial agent, and/or to distribute your estate at your death (and to whom, and how) – beyond the legal documents that give power and effect to your intentions – there remain the considerations and recommendations of outlining your intentions in a bit more detail.
What do I mean? What additional details? For example:
- About your personal preferences regarding your own physical care and comfort, in the event you are still alive, but no longer able to communicate (e.g. “I want to listen to classical music or audio books on Renaissance history; I do not want to be in a room with the television on all of the time; I want to be near a window, and taken outside regularly; I want to receive pastoral counseling,” etc.);
- About your perspective on prioritizing the expenditure of your assets for your care, versus preserving assets to the greatest extent possible for your beneficiaries at your death;
- About your final arrangements (i.e., details regarding a memorial service or celebration of life, placement and handling of your remains; etc.);
- About your perspective on investing or otherwise managing your assets (do you have preferences regarding types of investments, levels of risk, certain belief systems/ideologies that are important to you in terms of how your money is invested?);
- About your desired use of discretion, if any aspect of your legal documents is discretionary (what will help guide the person in charge regarding how you want them to exercise that discretion?);
- About your family dynamics, family history, your reasons for certain aspects of your estate plan, and/or your concerns regarding certain people, relationships, or situations;
- About your minor children, and details regarding their upbringing, in the event you are not around or able to participate in that upbringing;
- About your special needs child, or any other special needs individual for whom you are involved with his or her care (i.e., you may know that he or she gets stressed by the sound of the television, and soothed by the sound of the Beach Boys – how would a future caregiver know that?);
- About the use, distribution, or expenditure of money or assets you are leaving at death (e.g. “try to keep the cottage in the family; education should be a top priority.”);
- About specific professionals, companies, service providers, or financial institutions whom you like or recommend, or don’t like or don’t recommend;
- About your pets, regarding their care (i.e. name of veterinarian, preferred food or treats, etc.)
I often say to clients, “perhaps your [family member, friend, trusted advisor – whomever is named as the appointed agent] already knows all of this. But they likely don’t, and it never hurts to give a bit more detail and information, to help guide someone if they are ever acting on your behalf, with regard to your health or finances or estate or beneficiaries.” And particularly if there is ever a professional who is handling things for you or your beneficiaries, without having had a personal relationship with you or your family, or your beneficiaries – how will they know any of these important details, if you don’t somehow let them know?
All of these particulars, and much, much more, can be set forth in a separate writing, which will serve the purpose of elaborating upon the bare minimum of information that is covered by the legal documents themselves. This is sometimes called a Letter of Intent, or a Letter of Instruction, or a Letter of Wishes, or a Memorandum of Intent. Regardless of the title, this separate letter is intended to serve the purpose of providing ancillary supplemental information to the legal documents themselves.
An additional virtue of illuminating these details in a separate letter (separate from the legal documents themselves) is that it allows for much greater ease in changing the letter over time, without the need to re-do or re-sign all of the legal documents, every time. A vital aspect of the effectiveness of such a letter is that its existence is known by those who need to know, so, it is important to make sure that a copy of the letter is provided to everyone who might be involved or relevant (who might need to know), and perhaps (depending on the circumstances) to keep a copy with your legal documents, and provide a copy to your financial advisor and estate planning attorney. If you revise or change the letter over time, make sure that any prior versions are destroyed, in order to minimize the risk of confusion or contradiction. And finally, do be aware of the difference between what is legally binding versus merely informational, explanatory, instructive, personal – and avoid the risk of possible conflict between the language in the legal documents themselves versus the letter of instruction/intent/wishes, which could open the door to unintended issues.
All of which is to say, discuss this with your estate planning attorney. The starting point is to have the necessary legal documents. But a truly comprehensive estate plan will include more than the bare legal documents, and will provide your designated health, financial, and estate agents/actors with all of the information they may need to accomplish your desires, intentions, and wishes.