The worst part of being an estate planning attorney is telling those in need that it is too late to address whatever issue they may have. Unfortunately, this happens all too often and worse still, frequently such cases could have been prevented with just a little bit of foresight. Take, for instance, the following situation which recently came through our office.
Mrs. Anderson [name changed for privacy reasons] called to discuss a delicate matter. Her stepfather was on a ventilator and was not expected to live much longer. While not her natural father, Mrs. Anderson’s stepfather had raised her since childhood. He also had another, biological child who had been estranged from the family for a long time. When Mrs. Anderson’s mother died a few years ago, Mrs. Anderson stepped into the role of care-taker for her stepfather, buying him groceries, ensuring he took his medications, and generally looking after his well-being.
Prior to being hospitalized the stepfather had prepared no estate planning documents and, in particular, no HIPAA release and no medical power of attorney naming Mrs. Anderson. For this reason, his medical team would not share any information with Mrs. Anderson and so she came to us for advice. She wanted to know about options that would allow her to ensure her stepfather’s treatment aligned with his wishes and values and, further, she was concerned about what might happen to his assets should he die.
Ever since childhood, Mrs. Anderson’s stepfather had promised she would inherit certain assets. Further, he had expressed that he would like to leave her the majority of his estate and wished to pass certain sentimental items to her children, which he considered his own grandchildren. None of this existed in writing, however, and Mrs. Anderson was worried that upon his passing, her stepfather’s estranged son would reappear and try to get everything. She wanted to know what could be done to avoid this.
Unfortunately, for Mrs. Anderson it was simply too late. In his current condition, her stepfather was unable to sign a medical power of attorney or a will and without these documents, neither of her worries could be resolved. In order to intervene in his treatment, Mrs. Anderson would need to file for a temporary guardianship and then try to get permanent guardianship—an impractical solution. With no will in place, the distribution of her stepfather’s assets would be determined by Alabama’s intestate succession statutes and these dictate that his entire estate, including sentimental items, would pass to his son.
Mrs. Anderson was devastated. Even if she did gain guardianship allowing her to help her stepfather make decisions while still alive, nothing could be done about what would happen to his estate upon his passing.
These are never the kinds of conversations an estate planning attorney wants to have and they need not happen. Putting basic estate planning documents in place, including a will and advance directives, is a painless, expedient process and is worth doing right now. After all, the only thing worse than losing a loved one is losing their legacy in the process.
Call Miller Estate and Elder Law today to get started on your estate plan and save yourself and your loved ones the grief of ending up in a situation like that described above. Our phone number is 256-472-1900 and we can also be reached via the contact form on our website.