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Not Going to the Nursing Home Yet – So We’ll Just Wait

Frank was declining and Martha knew it. He had declined cognitively in the last 12 months but was still able to drive around town, make decisions and carry on conversations. No one noticed the slight cognitive decline except Martha. However Frank was also struggling with mobility issues. Martha and the kids were worried that Frank may fall which would change a lot of things in a negative way for the benefit of the entire family.

Frank & Martha are living home together as they have for the last 53 years. Frank is able to care for his needs, but given the rate of decline, Martha is doing more of the household chores to take up slack.

Actions Speaking Louder than Words

Neither Frank nor Martha have any estate planning documents in place. Knowing they are declining, they have often spoken about “going to someone” and getting a will but they have never done it. They also don’t have a power of attorney or any health care documents in place. There has never been urgency to make this move so, while all of this is on the radar, they thought that they would just wait.

Now that Frank is declining Martha has thought of these things a little more often, but the couple has concluded that since they don’t need a plan now, there is no need to get things in place. After all, they thought, “we have told the kids what we want and everyone understands”.

What and Why?

Martha is a smart cookie. She knows that (1) they have put their planning off for way too long; (2) she knows that “just telling the kids what they want” doesn’t make it happen; and (3) she knows that if Frank declines any more cognitively, he may not be legally able to sign any estate planning documents. For these and other reasons, Martha gives us a call and starts the planning ball to start rolling in their direction.

Here’s a few things that she and Frank may want to consider:

Authority Documents

Who will be authorized to make decisions on Frank’s behalf, should he become incapacitated. Martha assumes that since she and Frank and been married for the past 53 years, that it would be her. Many spouses learn (only when it’s too late) that they are not their spouse. In other words and to state the obvious, Martha is one person and can make decisions for Martha AND Frank is one person and can make decisions for Frank. In most situations of mental and/or physical declining, neither of them can make decisions for the other unless authorized in advance to do so. That’s why incapacity trustee provisions in a trust and powers of attorney are so important – but these documents must be signed when a person has the capacity to understand what they are signing.

Dispositive Documents

Martha and Frank may want to consider doing a will or revocable trust. Either of these documents will serve to pass assets along to the other or their kids at death. The big difference is that a will normally requires a probate to pass title to assets, while a trust, if properly funded, will pass title without probate. If Frank and Martha hold title jointly, Frank’s interest will pass to Martha at his death, but the probate would happen when the second one of them dies.

Health Care Documents

This is especially important to have in place, yet most people don’t. If they have anything, it’s just the little one page form that they give you at the hospital. I don’t blame the hospital for handing these out. Their doctors would be in quite a mess if patients came in with no planning in place (70% of America) and no one authorized to make decisions on their behalf. They are just trying to make it easier for their medical staff. Martha is on concerned about making it easy for her family.

At ELP, we work to protect you!

We work with people to do various types of estate planning. There is no one size fits all plan and no plan is categorically better than others. The key is to meet with your attorney (hopefully us!) to discuss your unique situation and have a plan crafted that is best for you. If you or your declining parent is not 100% sure of their beneficiary designations, please be proactive and give us a call before you (or they) lose capacity.

Without a properly flexible plan, how will you care for your declining Loved One, be there for your family, get work done, and pivot in the event of a crisis? What about cost? How will you pay for it all? If you make the Assisted Living Facility choice, how long will the money last? Together, we can craft a proactive plan! Lets get started protecting your assets!

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We have covered some legal topics in this edition and as always, I want to emphasize that (1) the law is different in every state, so if you live in a state other than Arkansas, just know that the law may be totally different in your state; (2) your situation is unique, so one size doesn’t fit all – meaning what we discuss herein may not be right for you; (3) we have purposely over-simplified many of the topics above (otherwise this would be many pages long and unreadable because of all of the legalize). It is imperative that you meet with your attorney (hopefully us!) and get a plan that will work for you. Please don’t attempt DIY Estate Planning based on what you read in this (or any) article AND don’t try to go it alone. Please consider this, get your questions answered and take action.