Estate planning feels complicated, confusing, time consuming and, at times, depressing. In terms of life priorities, it often takes last place behind absolutely all other life decisions (work, pets, children, groceries, cooking, laundry, reading, watching TV, all essentials to keep life functioning).

Estate planning requires thinking about death and/or incapacity, family foibles, and a sometimes a dearth of family, but from an elder law perspective, estate planning documents are the key to making decisions and retaining personal autonomy. The estate planning and elder law community prioritizes personal autonomy, allowing individuals to make their own choices, including who will manage their care if they become incapacitated.

Estate planning is an amorphous term, but it typically includes:

– Durable Powers of Attorney — health care and financial – to appoint people you trust to act as your agent to handle financial or health care decisions if you are unable (while you are alive).

– Advance Directives to provide guidance about your desires regarding continuing end of life medical care (or stopping end of life medical care).

– Disposition Authorizations to state your preference regarding burial, cremation, composting, memorial services, or other terms for disposition after death.

– Wills to state individuals or organizations to receive assets at death, to create estate tax savings and deferral, and to nominate personal representatives (executors), to choose a guardian for your children, and to nominate trustee of trusts set up inside Will to manage assets after you are gone (if needed).

– Alternative to a Will is a Revocable Living Trust, which is a lifetime tool to manage your assets, and then make all the same decisions post-death as a will (the person administering assets, the recipients of the assets, estate tax savings and deferral, trustees for irrevocable trusts that continue after your death, etc.).

Beyond these core documents, a comprehensive estate plan may also encompass  transfer on death/beneficiary designations (banks, retirement accounts, insurance, etc.), Medicaid planning, special needs planning, guardians and conservators, business transition planning, reducing or eliminating estate tax, and managing assets for individuals that are unable to manage their own assets (such as minors or people receiving means-tested benefits). Each document and strategy allows individuals to remain in control of their own decisions, rather than defaulting to the state’s rules.

Without validly executed estate planning documents, state law dictates what happens to your health care, finances and assets. The state’s rules tend to follow what a typical person would want, but that means there is little room for personal preferences.

For example, state law lists individuals that can consent to your medical treatment if you are incapacitated, starting with someone you name as your agent, then a court-appointed guardian, if any, then a list of various family members in descending order of priority. However, this process has limitations. While state law allows family members to consent to necessary medical treatment, it does not automatically authorize them to make long-term or non-emergency decisions, such as choosing a long-term care facility, enrolling you in a specific care program, making ongoing treatment decisions beyond emergency care. In these situations, without a valid Durable Power of Attorney for Health Care, your loved ones may need to petition the court for guardianship, adding unnecessary delays, stress, and expense.

The state does not have a set of rules regarding who can make financial decisions if an individual is incapacitated, which often leads to one of two results: 1) no one can manage the finances, or 2) a court appoints a conservator to manage finances (stripping the individual of their legal rights and giving them to another person).

Without a valid will or revocable trust, state law dictates who inherits your assets, following a predetermined order, in varying amounts, to spouses, children, parents, descendants of the decedent’s parents, grandparents, descendants of a decedent’s grandparents, and if no family is found, it can escheat to the state. A well-drafted will or trust simplifies asset distribution, reduces legal costs and ensures your wishes, not the state’s default rules, are followed.

Preparing estate planning documents allows you to, among other things:

– Choose your own health care and financial decision-makers,

– Specify your beneficiaries,

– Outline your desired funeral and burial arrangements,

– Establish clear end-of-life care preferences,

– Reduce estate administration costs and streamline asset distribution, or

– Nominate guardians/conservators for yourself or your children.

In addition to ensuring your choices are honored, having legally recognized, well-drafted documents simplifies decision-making for loved ones and reduces potential conflicts.

In summary, a strong estate plan sets out individuals’ preferences in clear and recognized documents that medical providers, financial companies, family and friends, and a court are most likely honor. Our firm seeks to create a unique plan for any individual that is clear, simple, and complete to promote individuals’ control in their personal decisions.

— By Kristi L. Richards

Would you like to learn more about Salish Elder Law? Contact us here:

Salish Elder Law

51 W. Dayton St., Suite 204

Edmonds, WA 98020

425-492-7212