Often people call my office and ask: “What do you charge for a FILL IN THE BLANK DOCUMENT.” I will respond (while trying not to sound unkind) that the documents are free. It is the 25 years of experience, the cases I have seen and most importantly the questions I ask and the conversation I have with clients that is the basis for my fees. To the uninformed, estate planning is a transaction and documents. But really it is so much more.
In building Slutsky Elder Law over the last 25 years, I have learned that estate planning is so much more than simply a few documents. I will admit that 25 years ago, before I had seen several thousand clients that I, too considered estate planning as a transaction and a few documents.
In the conversation (which I initiate but always end with: “Did we address all of the questions you may have had when you came in?”) we discuss:
- Family structure (first, second, third marriage, single with significant other or none, etc.)
- Family dynamic (I love kid #2 but he is horrible with money or owes me $100,000.00 and needs to have it deducted from his share)
- Donative intent (your ideas on who gets what, what if a child predecease, needs of particular children)
- Charitable intent
- Special situations (non-first marriages, step-children, disabled adult children or grandchildren, etc.)
- Financial decision making while alive
Often organized people who really want a 100% water-tight plan (which in this world does not really exist) often focus on the financials. And often these extremely organized people want to (justifiably) maintain control as long as possible. However, as counterintuitive as it sounds, giving up some control might make it easier for them to control the overall disposition of their property and also allow them to design a life plan that, while appearing to delegate more to others, allows them to participate in the overall outcome more than by maintaining direct control of everything. Understandably these organized people have frequently saved judiciously so they can have a comfortable retirement. But sometimes the inability to give up some measure of control can harm their overall goals.
First, as noted, there needs to be a detailed conversation with your advisors (legal, financial, tax, lifecare, spiritual, etc.). But the planning does not stop there. The conversation needs to include those close to you, whether they be children, other family members or professionals who will be tasked with ensuring your wishes are carried out.
The key to keeping control is for you to proactively discuss their role in carrying out your plan. They need to know what healthcare wishes you have. It is not as easy as “don’t keep me alive if there is no hope” as if anyone actually knows what that means. Under the law, if someone is in what we call an “end-stage” condition, it is easy. People know your life expectancy is limited and can make the right choice. In many cases that is pretty clear.
But what about if you have severe dementia and are totally dependent on others for your care? And your heart stops? And it can be restarted but you will be in the same dependent state that you were before? Is this something you want to prevent or do you want to be alive as long as you have a pulse? Is having a pulse a priority for you or is the ability to interact with your family the highest priority? What about being a burden on your loved ones? What about the cost of care and what it may do to your life savings and/or the quality of life of your significant other? The answers to these questions are not simple and require a discussion with your loved ones and your advisors. And, because they are rarely black and white, it may require you to give your trusted persons a level of autonomy in making important decisions.
And your finances. Have you invited your children to speak with your financial advisor, CPA, attorney? Have you clued them in on how you would like your assets managed? Your risk tolerance? Is there a family business involved? Investment real estate? Have you educated them on what you want to be done with these assets if you can no longer manage them?
Not only do you need to have discussions about what you want but your trusted parties need to know who each other are and have access to the important information they need. Do they know where your birth and marriage certificates, social security cards, life, health, and property insurance policies, POAs, wills, trusts, and mortgage information are located? What about where your retirement income is coming from, investments and financial accounts are located? Having this knowledge will help them help you.
By including your children (or other trusted parties) on how you have planned and giving them access to the information they need to know you have done your best to ensure that the plan you have made has the best chance of success. In other words, give up some control to gain better control of the outcome.