What Happens If Aging Parents Won’t Discuss or Are Ill-Informed about Estate Planning?

For the past 10 years, a librarian in southern California has lived in a no-win situation. Andre, one of four siblings, agreed to serve as executor—but their parents won’t say anything about their assets, their wishes, or their estate plan. This situation, detailed in the article “Estate Plan Crisis: What To Do When Your Parents Won’t Communicate” from next avenue, is common and will test sibling relationships unnecessarily.

The only thing Andre knows is that each parent has a financial and medical Power of Attorney for the other. This legal document names a person, referred to as the “agent,” who can fulfill the person’s wishes if they become incapacitated. If you have a POA, you should also have a successor POA. In the case of Andre’s parents, where both parents are elderly, having a backup is paramount, as it’s entirely possible both parents could be incapacitated at the same time. In keeping with their closed-door policy, Andre’s request for an alternate POA was denied, with parents claiming the executor would automatically have power of attorney if they become incapacitated. This is simply wrong. The POA dies with the person.

Conversations with Andre’s siblings were as fruitless as the conversations with their parents. They didn’t want to get involved, even though they may be more qualified than Andre to manage an estate.

Why would parents do this to their children? Many elderly people say they don’t want to create an estate plan to be a burden on their children. However, this is completely backwards. Having an estate plan created by an experienced estate planning attorney reduces the burden, giving offspring the tools to carry out their parent’s wishes and making life easier for them.

Another common mistake: people think children or spouses have the automatic right to make medical or legal decisions in a crisis. Without the correct legal documents (POA, HIPAA Release, Advanced Directive or Living Will, Healthcare Proxy and others), spouses and children have no right to speak with physicians or be involved with medical decisions.

If the correct estate planning documents are not in place, someone else makes a host of decisions. Doctors may make life-or-death decisions. A guardian will be in charge of an incapacitated person’s finances. Courts will appoint administrators to distribute assets. Minor children will be raised by whoever the court believes will be their best caretakers.

Estate planning need not be complicated. It starts with a consultation with an estate planning attorney, who will explain what is needed in your state. Their guidance will prevent disasters, like the one facing Andre.

• A few pointers:
• Be consistent with beneficiaries, titles and deeds. All estate planning documents, including wills, beneficiary designations, trusts and transfer-on-death designations, need to work together. For instance, if you name a nephew as the beneficiary designation on your IRA and then name your niece to receive the same IRA in your will, the designation on the IRA will override your will. Your niece and nephew may not speak to each other again.
• If you move to another state, you may need to revise estate documents, since these are state-specific laws.
• Most importantly, meet with an estate planning attorney, have an estate plan created and talk with your executor and your heirs about your plan. More communication, not less, is a worthy legacy.

Legacy One Law Firm, APLC is an estate planning law firm in Los Angeles, California, serving families throughout the State. Schedule a quick and easy consultation with our estate planning attorney, Sedric E. Collins, Esq., or call 323-900-5450.