By: Stephen R. Elville — President and Principal Attorney of Elville and Associates, P.C.
For most aging singles and couples, it is important to become educated about elder law-related matters as a practical necessity. But how does one become educated regarding this all too often mysterious, ambiguous, and esoteric subject matter? The following fictitious but all too real short story may provide insight.
Gigi is married with three adult children. Her husband, Jerry, was a successful teacher. During the first few years of their retirement, Gigi and Jerry enjoyed travel and spending time with their grandchildren. Then, over a period of several months, Jerry developed memory issues and was eventually diagnosed as having a form of dementia, Alzheimer’s-type. After caring for Jerry for many months, Gigi began to search for answers to many questions – how will I pay for or manage the cost of care?; is it too late to buy long-term care insurance?; how can I get help in my home and who will manage that caregiving? how can I get respite?; how can I preserve my assets and what will happen to my financial future?; how do I still leave assets for my children now that I am facing this crisis?; how do I get a level of care assessment?; how does the world of Medicaid work and what will happen if Jerry needs a nursing home?
After months of enormous worry and stress, and after an exhaustive search for information (much of what was provided being misinformation and myth rather than facts), Gigi sought the advice of a knowledgeable elder law attorney. She obtained answers to her pressing questions, was relieved of her sense of despair and hopelessness, became empowered through the knowledge that she would not lose all of her financial assets or her home, learned about asset protection and estate planning strategies for elder law, was directed to resources and programs that provide level of care, assessment, care management, financial and tax advice, and more. The main lessons here are that Gigi sought help and became empowered. Because she sought competent professional advice about elder law matters, Gigi went from a position of weakness to a position of power and direction. And just as important, Jerry’s care needs for the long-term future were assessed and addressed.
An elder law consultation is a powerful tool
The elder law consultation is a powerful tool for families facing the care and financial issues involved in today’s aging process. Gigi’s example is illustrative of a crisis or near-crisis situation; whereas it is always advisable to become educated about elder law-related matters well in advance of a crisis. Elder law essentials workshops are available for this purpose with what is known as a pre-crisis elder law consultation as follow-up.
So how do you go about becoming educated through an elder law consultation?
The process is straightforward – there are 3 steps: (1) call or send an email to your elder law attorney to set an appointment; (2) attend the elder law consultation meeting and be prepared to take notes and absorb information – it is advisable to bring a family member or professional advisor along with you for support and collaboration; and (3) be ready to act upon the information provided so that the process of accomplishing your goals can begin. A comprehensive elder law consultation is one of the most powerful tools available to legal consumers today. Take the time to think about this elder law issue.
To schedule an elder law consultation, contact Stephen R. Elville at 443-393-7696, or via email at steve@elvilleassociates.com; or contact Mary Guay Kramer, at 443-741-3635, or via email at mary@elvilleassociates.com.
Estate Planning and the Surviving Spouse: Considerations & Procedures with Olivia Holcombe-Volke
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A Letter of Wishes, By Any Other Name
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.
Which Nursing Home Rating System Should You Trust?
Choosing a nursing home for a loved one is a difficult decision and it can only be made more confusing by the various rating systems. A recent study found that using both Medicare’s Nursing Home Compare site and user reviews can help with the decision making.
The official Medicare website includes a nursing home rating system. Nursing Home Compare offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. However, Medicare’s rating system is far from perfect. The staff level and quality statistics ratings are based largely on self-reported data that the government does not verify. The ratings also do not take into account state fines and enforcement data or consumer complaints to state agencies. Nursing homes have learned how to game the system to improve their ratings.
While Nursing Home Compare doesn’t include consumer feedback, Yelp and other online platforms like Facebook, Google, and Caring.com allow users to review individual nursing homes. These user reviews are highly subjective, and it can be difficult to judge their legitimacy. These reviews are not usually taken seriously–for example, consumer guides to finding a nursing home do not usually suggest that consumers consult online reviews. (It should be noted, however, that Caring.com goes to great lengths to ensure the integrity of its reviews, including having senior care experts read every submission before publication.)
In order to better understand what consumers were saying about nursing homes online, researchers at the University of Southern California evaluated 264 Yelp reviews and grouped them into categories. The researchers found that consumers rate different aspects of nursing home care than does the official rating system. User reviews were more emotional and more likely to focus on staff attitudes and responsiveness rather than on the quality of health care.
The researchers concluded that user reviews can be used in conjunction with the Nursing Home Compare site to paint a fuller picture of life at the nursing home because they present complementary information. According to the study, online reviews shouldn’t be dismissed because they “directly capture the voices of residents and family members, precisely the kind of information [nursing homes] and their consumers need to hear and may want to act on, if resident-directed care is to be achieved.”
Yelp has gone a step further than other consumer review sites and has teamed up with the investigative news organization, ProPublica, to provide users with additional information. ProPublica’s Nursing Home Inspectsite, allows users to compare nursing homes based on federal data. Yelp users viewing a nursing home review page see a ProPublica box that provides information on the nursing home’s deficiencies and fines.
To read an article about the study, click here.
For more on choosing a nursing home, contact one of our elder law attorneys here at Elville and Associates. Both Principal Attorney Stephen Elville and Senior Elder Law Attorney Lindsay Moss have extensive experience in guiding clients through the process of choosing a nursing home for loved ones, and working with clients in crisis and pre-crisis situations. Steve can be reached at steve@elvilleassociates.com, while Lindsay can be reached at lindsay@elvilleassociates.com.
Elville and Associates — Planning for Life, Planning for Legacies.
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Supported Decision Making – New/Old Voices in the Market Place – What Advisors Need to Know
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As baby boomers age, more and more millennials are becoming caregivers. Many are taking on this role while just getting started in their own lives, leading to difficult decisions about priorities. Proper planning can help them navigate this terrain.
The term “sandwich generation” was coined to refer to baby boomers who were taking care of their parents while also having young children of their own. Now millennials are moving into the sandwich generation at a younger age than their parents did. According to a study by the AARP, one in four family caregivers is part of the millennial generation (generally defined as being born between 1980 and 1996). And a study by Genworth found that the average age of caregivers in 2018 was 47, down from 53 in 2010. Gretchen Alkema, vice president of policy and communications at the SCAN Foundation, told the New York Times that the rise in younger caregivers may be because baby boomers had kids later in life than their predecessors and many are divorced, so they do not have a spouse to provide care.
Younger caregivers have different challenges than older caregivers. They may have younger kids to manage and careers that are just beginning, rather than established. In addition, more millennial men are caregivers compared to previous generations. The AARP study found that millennials spend an average of 21 hours a week on caregiving, and one in four spend more than 20 hours per week. More than half (53 percent) also hold a full-time job in addition to their caregiving duties and 31 percent work part time. Younger caregivers are also less likely to discuss their caregiving duties with their employer than previous generations.
Planning Long Term Care Can Help Avoid Stress & Crisis
Managing caregiving duties, family, and employment is stressful. Having plans in place can help alleviate some of the stress, and the earlier you plan ahead the better. The following are resources you can use to put together a long-term care plan:
• Long-term care insurance can help lessen some of the costs of caregiving if it is purchased early enough.
• A geriatric care manager can help determine what care is needed and where to find resources.
• An elder law attorney can draft essential documents like a power of attorney and a health care proxy, as well as advise you on available benefits, such as Medicare, Medicaid, or Veteran’s Administration benefits. To find an attorney near you, click here.
• Adult day care can give caregivers a much-needed break.
Having resources in place will help, but you also need to be mindful of when you need help. Recognize when you are being stretched too thin and consider your priorities. If possible, talk to your employer about flexible hours. Consult with other family members and do not be afraid to delegate tasks. Take care of yourself by eating well, exercising, and finding time to relax. For some tips on handling the caregiver/life balance, click here.
For an article on the unique caregiving challenges facing the women of Generation X, click here.
The attorneys at Elville and Associates are uniquelly-positioned to be a resource to those who are caregivers to both their parents and children of their own. The crisis situations that typically arise in these situations are matters the firm’s attorneys address on a regular basis. Should you ever feel overwhelmed and need advice on next steps when faced with being a caregiver to aging parents as well as caring for yourself and your own young family, reach out to Legal Administrator Mary Guay Kramer to set a time to discuss your needs with one of our estate and elder law attorneys. Ms. Kramer can be reached at mary@elvilleassociates.com or on her direct line at 443-741-3635.
Talking about estate planning with elderly parents can be a difficult, emotional topic, but it’s essential for every family.
Unless you’re certain your parents have an up-to-date will and a wider plan for what should happen in the event of their passing, don’t assume everything will be taken care of. According to a 2017 survey, less than half of Americans have a will. If your mother or father dies intestate (i.e., without a will), such a situation could lead to added emotional strain and stress. I can also have major financial implications for the entire family members.
The following 8 tips can help you discuss the hard topics thoroughly and respectfully and prepare your family for the road ahead.
1. Make a Plan to Discuss Estate Planning with Elderly Parents
Discussing estate planning and all it entails is not something that should happen without planning. Make a list of topics and questions, then let your parents know what you want to chat about with them. If possible, set a time and date and choose a private venue where everyone will feel comfortable. Be aware that you may need to schedule a few conversations as there could be too much to cover in one sitting. Remember to use language that’s respectful and supportive, and to take a breather if emotions run high or the stress becomes difficult to manage.
2. Identify Key People to Involve in Parents’ Estate Planning
There are several key people you will need to contact for estate planning purposes, including those listed below. Each of these people plays a valuable role in helping parents understand their estate, including their values and beliefs. These become the pillars upon which a solid estate plan is built. Therefore, ask your parents for the names and contact details of the following people.
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- Doctors
- Attorney
- Financial planner and/or accountant
- Insurance brokers
- Minister of religion
- Closest friends
3. Discuss the Possibility of Existing Will
Determine if there is an existing will in place and whether the document is up to date. If a will was created more than five years ago, check to see if they will consider reviewing it to ensure that it is a true reflection of their wishes. Establish where they keep their will and confirm who they’ve appointed as the executor. The same goes for any trust that may have been created. And if your parents created a will themselves or wrote an online will, it is essential that it be thoroughly reviewed by an attorney.
4. Talk About Power of Attorney
Find out whether your parents have appointed someone to manage their affairs if they become incapacitated. If they haven’t given someone power of attorney, suggest they consider doing so.
5. Discuss Parents’ End-of-Life Wishes
Even though the subject may be uncomfortable to talk about, you should discuss your parents’ end-of-life wishes with them. Their estate plan will be incomplete without these directives, so it’s important to include them. The form those directives take depend on the state in which you live, and they may include:
- Appointment of a health care proxy who can make medical decisions for your parents if they become incapable of making those decisions themselves. You can obtain the relevant forms from an elder law attorney or from a hospital or nursing home · A medical or advance directive that explains what sort of care they would like and whether life support should be used to keep them alive or not. These directives can be included in the document that appoints the health care proxy. The directive must refer to the Health Insurance Portability and Accountability Act (HIPAA) when naming the proxy
- A living will contains instructions regarding the withdrawal or termination of life support under specific conditions, such as your parents becoming terminally ill, becoming comatose, or entering a vegetative state
- Physician Orders for Life-Sustaining Treatment (POLST), which provides more explicit directives regarding the type of treatment your parents would or wouldn’t want
6. Ask About Insurance Policies
Talk about the type of insurance policies your parents have in place, such as:
- Health insurance – Medicare or private
- Life insurance
- Home insurance
- Long-term care insurance
- Disability insurance In some cases, there may be seniors funeral insurance or other policies intended to cover funeral or burial payments. You’ll need to know about these too and have all their details.
If you haven’t already done so, take note of the names and contact details of the insurance brokers. Check where the policy documents are kept, and if possible, make certified copies of them.
7. Request Access to Parents’ Tax Returns
It is important to know where your parents’ tax return paperwork is stored. They could be required if the estate becomes complicated. Confirm where you can find these documents and that they’re all up to date.
8. Discuss All Other Practicalities
In addition to subjects such as power of attorney and insurance, there are several other practicalities you should include in your conversations.
- Make a list of their accounts – financial accounts such as bank and mutual fund, credit accounts, and store accounts
- Check if they are registered organ donors or whether they would consider donating their organs
- Talk about the memorial service they want and whether they want to be buried, cremated, or some other option.
Conclusion
Estate planning conversations are tough no matter how you tackle them. When discussing estate planning with elderly parents, try your best to be patient and transparent with other family members about what you’re doing. If you have siblings, invite them to be part of the conversation.
Accept that these talks can take time and avoid placing pressure on those involved to get it all done in a few hours. The smaller details are critical and should not be rushed. Lastly, always consult your attorney at Elville and Associates if you’re unsure about the legal aspects or implications of any of the points mentioned above.
To set a time to consult with an attorney at Elville and Associates, please contact Legal Administrator Mary Guay Kramer at mary@elvilleassociates.com, or you can reach her on her direct line at 443-741-3635.
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The coronavirus health emergency is a reminder that life is unpredictable, and it makes sense to be prepared. It may sound self-serving, but the threats to life and finances posed by the pandemic offer ample reason to reevaluate your estate plan — or create one if you haven’t already.
Experts recommend that you will need to revisit your plan after certain key life events, including changes in health, finances, or family status. Unfortunately, this global health crisis can affect all of those aspects of your life. You should make sure you have these essential documents in place to protect yourself and your family:
- Medical Directives. A medical directive may encompass a number of different documents, including a health care proxy, a durable power of attorney for health care, a living will, and medical instructions. The exact document or documents will depend on your state’s laws and the choices you make. Both a health care proxy and a durable power of attorney for health care designate someone you choose to make health care decisions for you if you are unable to do so yourself. A living will instructs your health care provider to withdraw life support if you are terminally ill or in a vegetative state. A broader medical directive may include the terms of a living will, but will also provide instructions if you are in a less serious state of health, but are still unable to direct your health care yourself.
- Power of Attorney. A power of attorney allows a person you appoint — your “attorney-in-fact” — to act in your place for financial purposes when and if you ever become incapacitated. In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
- Will. A will is a legally-binding statement directing who will receive your property at your death. If you do not have a will, the state will determine how your property is distributed. A will also appoints a legal representative (called an executor or a personal representative) to carry out your wishes. A will is especially important if you have minor children because it allows you to name a guardian for the children. However, a will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate and aren’t covered under a will.
- Trust. A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” Trusts have one set of beneficiaries during those beneficiaries’ lives and another set — often their children — who begin to benefit only after the first group has died. There are several different reasons for setting up a trust. The most common reason is to avoid probate. If you establish a revocable living trust that terminates when you die, any property in the trust passes immediately to the beneficiaries. This can save time and money for the beneficiaries. Provided they are well-drafted, another advantage of trusts is their continuing effectiveness even if the donor dies or becomes incapacitated.
- Beneficiary Designations. Although not necessarily a part of your estate plan, at the same time you create an estate plan, you should make sure your retirement plan beneficiary designations are up to date. If you don’t name a beneficiary, the distribution of benefits may be controlled by state or federal law or according to your particular retirement plan. Some plans automatically distribute money to a spouse or children. Although others may leave it to the retirement plan holder’s estate, this could have negative tax consequences. The only way to control where the money goes is to name a beneficiary.
Contact the estate planning attorneys at Elville and Associates to ensure your estate plan is complete and up-to-date. Our attorneys are fully prepared to meet with clients remotely or in our office, and states including Maryland have temporarily relax their rules regarding requirements that documents be signed and/or notarized in person. For a free consultation to begin your planning or for a free document review, contact Mary Guay Kramer, Legal Administrator at Elville and Associates, at mary@elvilleassociates.com, or 443-741-3635.
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Many types of property and investments pass outside of probate and allow you to designate who will receive them after your death. It is important that these designations are kept up to date and are consistent with the rest of your estate plan.
When you open up an investment account or retirement plan or buy life insurance, the company encourages you to name beneficiaries who will inherit the property on your death. The choice you made at the time may not have taken your estate plan into consideration. To review your beneficiaries, get a copy of all of your beneficiary designation forms. Check to make sure that your beneficiaries are consistent with the rest of your estate plan or, if they are different, that the difference is intentional. If you made these designations online, print a copy of the page so that you also have a paper record. Once you have collected all of these forms, put them in a folder with your other estate-planning documents so that you and your heirs can quickly and easily find them in the future.
In determining how to make your beneficiary designations, the following are the considerations for each type of account:
- Bank and investment accounts. If you have a revocable trust as part of your estate plan, you can make the trust the owner of all of your bank and investment accounts. This way you avoid the need to name anyone as beneficiary and you still avoid probate. Then, all of the protections provided in the trust–for instance, that children do not receive their inheritance until a certain age or provisions for who receives the funds if a beneficiary predeceases you–will apply to the accounts. If you’re not using a revocable trust, simply name those who will receive your estate under the terms of your will. Or you have the option to name no one. If you do not designate a beneficiary, the account will pass according to the terms of your will and, while you won’t avoid probate, you’ll make sure that the people you want will receive the assets, that your personal representative will be in charge, and that any changes you make in the future–such as disinheriting your wayward nephew– will apply to the accounts.
- Life insurance. Unlike bank and investment accounts, the ownership of many life insurance policies–especially those that come as an employment benefit–cannot be transferred to your revocable trust. And there is really no benefit to doing so in any case (although there might be some tax and long-term care planning reasons to transfer property to irrevocable trusts). Instead, the beneficiary designation is the most important decision. If you have a revocable trust, you may name it as the beneficiary for the reasons mentioned above. Or you can name particular individuals. The beneficiary designation form will permit you to name alternates in the event that the first person or people you name predecease you.
- Retirement plans. First, don’t transfer your retirement plans to your revocable trust. The only way to do so is to liquidate the plan first, which would be a taxable event. Second, don’t name your revocable trust as a beneficiary of your retirement funds without consulting your lawyer. In most instances, if your spouse is not the beneficiary, the retirement plan will have to be liquidated and the taxes paid within 10 years of your death. On the other hand, if you have a relatively small amount of funds in retirement accounts, this might not be a big problem. It is much more important with retirement plans than with life insurance or other investments that you designate a beneficiary, because there are different rules for different beneficiaries. If your spouse inherits your IRA, your spouse can treat the IRA as his or her own. Your spouse can either put the IRA in his or her name or roll it over into a new IRA. The rules for a child or grandchild (or other non-spouse) who inherits an IRA are somewhat different than those for a spouse. The beneficiary must withdraw all of the assets in the inherited account within 10 years. There are no required distributions during those 10 years, but it must all be distributed by the 10th year.
To make sure that your beneficiary designations align with your estate plan and are as beneficial to your intended heirs as possible, talk with an attorney here at Elville and Associates. Initial estate planning consultations as well as document reviews are free, and we look forward to being a resource to your family and you. To make an appointment, contact Legal Administrator Mary Guay Kramer at mary@elvilleassociates.com, or at 443-741-3635.
By: Olivia R. Holcombe-Volke – Partner and Senior Estate Planning Attorney – Elville and Associates, P.C.
Many clients ask “how will my son/daughter/sister/cousin/friend [i.e., people designated to carry out the estate plan] KNOW what the documents say or how they work?” This question highlights a very important point, which is that an estate plan is only as effective as there is knowledge of its existence and function. If none of the people designated to carry out certain roles are aware that they have been so designated, nor aware of the location of the documents, nor the logistics of acting under the documents and what they are and are not allowed and expected to do, nor the client’s intentions and preferences and goals and concerns, nor any of the professionals involved with the client’s health, the financial, and legal world and wellbeing – then the estate planning documents that were so carefully thought through, the money that was so preciously spent to create them, and the protections that were intended to result from doing so, may all be for naught. An effective estate plan is one that does not exist in a vacuum.
What is the solution? The answer to this question is to have what is often referred to as “the family meeting,” though this is a bit of a misnomer, as its purpose is primarily to bring the named health, financial, and estate agents (those persons named to carry out certain roles) into the loop. Often these named agents are family members, but the point of the so called “family meeting” is to include the people who have been designated to act in certain capacities, whatever their relationship to the client may be, in the estate planning process, so that they have the opportunity to be made aware of their designation to act in certain capacities, at certain times, and what that all means.
The family meeting may also be useful for the purpose of introducing the beneficiaries of the estate plan to the plan and the intentions behind it. This may or may not be appropriate in all situations – not every client wishes their intended beneficiaries to know that they have been named as beneficiaries in the estate plan, as the client may wish to change that plan in the future, and does not wish to cause upset or conflict as a result. And, this in no way means sharing any of the specifics of the size or amount of assets involved, unless that is information that the client desires to share.
The attorneys of Elville and Associates offer and encourage clients to include a family meeting as part of the estate planning process. The additional benefit of doing so with the estate planning attorney’s participation is that it allows the named agents, beneficiaries, and family members to put a face to a name, and to know that there is a professional involved who can assist with the activation and administration of any of the necessary estate planning documents, if and when the time for such activation and administration arrives.
The first step in any successful estate plan is to create the plan. The second and equally vital step is to implement the plan, which includes notifying the involved parties of the existence of the plan, and their respective roles in it.
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