Typically, the people who think the most about estate planning are those who are in a fairly traditional family unit. They have spouses, children, and grandchildren they want to provide for, and who they can rely upon. In that scenario, it is easy to identify the right people to trust with important decisions, who you will give the authority needed to take care of you if you have a crisis. An awful lot of people and families do not fall into that traditional nuclear family scenario, though.
So what happens with your estate plans if you are not in a traditional nuclear family? There is quite a lot that can fall under the umbrella of a non-traditional family, and the recommendations will vary depending on your specific circumstances. The most challenging circumstance from my experience has been the person who is not married and who does not have any children. People in that situation typically have a particularly difficult time identifying the people they want to have involved in their estate plan.
You may ask, and some single and child-free people do ask, so what? If you do not have any dependents who rely upon you to take care of them, why would you need to do estate planning? If the only purpose of estate planning were determining who gets your stuff after you die, and you are fine with your entire life savings escheating to the government, maybe a will is not a big concern for you. But estate planning is not just about wills and inheritances. A very important part of estate planning, probably the most important part, is planning for what happens to you while you are still alive.
Two of the most important estate planning documents a person can have are a Financial Power of Attorney https://keystoneelderlaw.com/power-of-attorney-faq/ and a Health Care Power of Attorney. These documents identify the person or people who you want to speak and act on your behalf if you are not able to do so, and give those people legal authority.
What happens if you are in a serious accident? What if you are in a coma? What if you have a stroke? What if you develop Alzheimer’s or Dementia? If you never did any planning, then no one has the authority they would need to be able to help you in that situation, and the outcome for you could be truly dire.
There is a legal proceeding called Guardianship in which a court can appoint someone to act on your behalf if you never did so for yourself . However, there are a number of problems with Guardianship. It takes a time. Your circumstances could be getting progressively worse during the months you are waiting for someone to be appointed to act on your behalf. Guardianship is expensive, both because of the cost of the legal proceeding itself and because of the other expenses that are accumulating during the delay. The legal proceedings could be stressful and embarrassing for you and for the people in your life. The person who the court appoints might not be the person you would have wanted, who has the best understanding of your wishes and goals and who you would most trust to act in your best interests.
Guardianship should be a last resort, and one that we think you should plan ahead to avoid. We want to make sure there is someone in your life who has the authority to get you admitted to a hospital or facility that can provide you with the care you need, who can make sure your bills are being paid and accounts managed effectively, who can file for disability and long term care benefits on your behalf, who will act in your best interest, and who can act quickly at a time when delay could be very harmful to you.
Who do you name for that role? It depends on your support network. If you are all alone in the world, with no spouse or children, what does your support network look like? You may have a very healthy support network of friends and extended family members who you trust and who are there for you. Or you may have to look harder to identify someone you can trust to notice if you need help and step in to help you.
If you do not have a spouse or children, you may start by thinking about who else you have in your family. Siblings, nieces, and nephews are common choices. There is no requirement that your Power of Attorney or Health Care Power of Attorney agent must be related to you, though. Think about who you spend your time with. Who do you see and talk to regularly? Is there a friend you trust? A neighbor? Someone from church? Someone in your book club? Ideally, you should identify a few people who can be named in succession, in case something happens to the first person you name.
Once you have identified the people in your life who you trust, you need to make sure they are comfortable with being named to the role of Power of Attorney and Health Care Power of Attorney. You should have conversations with them to ensure they understand the responsibilities of those roles and are willing to accept that responsibility. You should also talk to them about what your wishes would be, so they know what types of decisions they might be called upon to make, and they have some guidance from you.
After we figure out who you can rely upon, and ensure someone has the authority needed to take care of you while you are still alive, we can worry about the rest of your estate plan. Maybe in the course of thinking through the people in your life you trust to care for you, you will decide you also want to care for them with a provision in your will.
By Kelly M. Appleyard