Tough Decisions Made Easier—The Do’s And Don’ts Of Estate Planning

By Amy B. Boulware, LAP MSW, Care Manager, Elder Law and Special Needs, Chambliss, Bahner & Stophel, P.C.

I will never forget the day my mom called me and said she had something very important to discuss. She and I spoke daily, but this request seemed different, almost ominous. When I arrived at my parent’s home, she told me that she wanted to change her power of attorney documents. My parents had been married for 48 years, and in her current documents, she had named my father as both her financial and medical agent. Why would she want to change that now? Well, she was battling her third round of cancer, and she was afraid that this time she might not beat it. She told me that my dad was too emotional and she was afraid that he would not follow her wishes if she were unable to speak for herself.

Anyone who knows my dad would agree that he is indeed emotional and that he loved my mom with all of his heart and would probably do everything to keep her alive. However, she had made her wishes known in her advance directive, which included not doing everything to keep her alive. She was very clear that if she was unable to function in what she considered an acceptable way, she did not want to have any aggressive treatment. We spoke with my dad to tell him about her decision and then went to see their attorney to change her documents.

Even though I work as a geriatric and special needs social worker and have seen many people rely on their power of attorney to make decisions for them, I never really thought there would be a time when my mom was unable to speak for herself. Unfortunately, that day came when her cancer spread to her brain, and she was unable to communicate with us in a coherent way. The doctors presented us with continued treatment options that even they said would have little chance to allow her to live the quality of life she wanted. My mom knew my dad, and in the circumstance of treatment or end of life care, she knew that he would have chosen treatment. Instead, she chose me to make her health care decisions. Really though, I didn’t have to make the tough decision because she had given us the gift of advance planning.

In the work that I do with our elder law and special needs team, I have learned that there are definitely things that can be planned for so loved ones are not facing a crisis with no preparation. Benjamin Franklin once said, “By failing to prepare, you are preparing to fail.” Like the moment the tornado hits is not the time to think that you should have re-evaluated your homeowners insurance, a medical or family crisis is not the time to think about the fact that you never got around to completing or updating your estate plan. Below are some common mistakes seen within our practice that I encourage everyone to think about.

Not having an estate plan at all
I often tell people that there are two things I can tell them for sure: either they are going to die young or they are going to die as an elderly person. This is a fact. Nobody escapes death. In our society, we are so fearful of death and aging that we often don’t want to even talk about it, but not talking about it doesn’t mean it won’t happen. In a proper estate plan, you will decide how your personal and financial affairs are handled in the event something happens to you, no matter when it happens.

Not updating your estate plan
I recently met with a client who said her estate plan included instructions on caring for her minor children. Her children are now 29 and 32, which means that updating her plan is well overdue.

Not choosing the right person to be your power of attorney or executor
Many people automatically chose their spouse or oldest child to be their agent, but the fact that they are close family members is not necessarily the right reason to choose them. It is very important to select an individual or professional who is capable of understanding the duties of these jobs and is willing to execute them the way you wish.

Not updating beneficiary designations to reflect the new estate plan
If you have done new estate planning that includes trust work, updating the beneficiary designation to reflect those changes is crucial. We have recently seen adult children with disabilities who are receiving public benefits who also receive investment account balances through a beneficiary designation. This one action made this child ineligible for Social Security benefits, medical insurance, and subsidized housing. Had the parent changed the beneficiary designation to a special needs trust, it could have been avoided altogether.

Not talking to the person you appointed as the agent of your wishes
Many people feel uncomfortable discussing their estate plan, medical wishes, and finances with others. If you trust the person enough to have named them to act on your behalf, you should be able to have this conversation. Your estate planning team should be able to facilitate this type of conversation. Our team assists with this on a daily basis. Open communication is the key to a good plan.

Not properly planning for elder care
As an elder law team, we often discuss long-term care costs, what Medicare does and does not cover, veteran’s benefits, and hospice care. Many people are misinformed about the complexity of navigating elder care.

Amy B. Boulware of Chambliss, Bahner & Stophel, P.C. will speak at TBA’s Trust and Wealth Management Conference, held Oct. 14 & 15 at the TBA Barrett Training Center in Nashville.

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