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Having "the Talk" About End-of-Life Planning - Werner Law Firm

Having "the Talk" About End-of-Life Planning

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: February 28, 2019

One of the most upsetting aspects of growing older is switching roles with parents. Many adult children become distressed upon finding themselves caring for an aging parent. Although help might be needed, parents are often reluctant to relinquish any control to their children, who they may regard as unable to understand their frustrations. Others may […]

One of the most upsetting aspects of growing older is switching roles with parents. Many adult children become distressed upon finding themselves caring for an aging parent. Although help might be needed, parents are often reluctant to relinquish any control to their children, who they may regard as unable to understand their frustrations.

Others may be fighting the realities of aging, and see working with end-of-life documents as an acknowledgment that they are nearer to death than they are prepared to face. Some elderly parents don’t see the need for estate planning at all. Sometimes a health scare, accident, or crisis may force these conversations.

However, that’s a dangerous way to plan for one’s eventual death. Those who die without a last will and testament or any kind of estate planning invite the expensive and exhausting probate process or other legal headaches for their heirs. Waiting until a parent is ill or incapacitated is not the most efficient way to enter the process of end-of-life planning.

Doing so while a parent is healthy and mentally alert is the best way to ensure a smooth process for them as well as all of their potential benefactors. If you are struggling to undergo this process with a parent or elderly loved one, here are a few ways to at least start the conversation about end-of-life planning.

Which End-of-Life Planning Documents Are Necessary?

Some elderly parents may shy away from even the concept of a last will and testament but are open to defining end-of-life medical wishes. Others make their peace with settling the financial aspects of their lives, but don’t want to think of the prospect of catastrophic illness. Still, others might avoid meeting with an attorney because they feel frightened and overcome by all the decisions to be made.

It’s important to meet your parent where he or she is and perhaps begin with the legal documents he or she is ready to speak to a legal professional about. If your parent is unsure about which documents are needed when a well-qualified lawyer can also help customize a plan for his or her specific situation.

Your elderly parent might require reassurance that he or she is still in control and may make his or her own decisions. If he or she is mentally, physically, or emotionally capable, speaking frankly and from a position that underlines their adulthood may help.

Emphasizing just which documents are necessary might make the task seem less overwhelming, and help them feel more as if they are steering their own course. Most importantly, try to avoid over-managing the estate planning process if your parent is reluctant to enter into it.

Some are surprised to hear that not all popular end-of-life planning documents might not be appropriate or applicable. This can be a relief as well as an education. These documents are the most popular for those entering into estate planning, but they may or may not be ideal for your parents and the rest of your family.

Last Will and Testament

Any person who owns any property at all has an estate. The contents of this estate might consist of a car, property, the contents of a bank account, or personal items. They can also include retirement accounts, investment properties, and cash parents may have stashed away.

Even if personal assets may not account for large sums of money, a will helps to clarify which benefactor receives them. The signing of a legally valid last will and testament is the first line of defense in avoiding probate.

Living Trusts

Trusts are a way to create a legal entity to “hold” property and assets while the person who creates them is still alive. The person who establishes the trust and sets him or herself as the controller of it may simply live as usual. When the establisher of the trust dies, the trust dissolves, and a successor trustee then distributes the assets within.

Trusts are usually the most effective way to avoid probate. They tend to be more complex than wills and may carry different tax implications, but trusts are more private and better protection against the state becoming involved with estate distribution.

Power of Attorney

There are different forms of power of attorney. Your parent may even have used this in a business or real estate context. Where end-of-life planning is concerned, however, power of attorney can last much longer.

It can be put in place before a person is incapacitated, and names a responsible adult as a person who can make decisions on behalf of one who is incapacitated. If your elderly parent is concerned about the legal definition of “incapacitated,” he or she should speak to a qualified professional about what the threshold is considered in his or her state of residence.

Power of attorney allows a person to buy or sell real estate, withdraw from bank accounts, or establish guardianship. Obviously, in the event of necessary funds for medical care or funeral expenses, it is best for close family members to have this access immediately, rather than waiting for insurance payouts.

Advanced Health Care Directive

These can be as specific or as general as your elderly parent wishes. They address pre-made decisions about end-of-life decisions, insertion, and removal of feeding tubes, extraordinary measures, and other issues. Advanced health care directives can also include autopsy authorizations, approval for tests or certain surgeries, and even designation of specific health care providers.

Those who sign health care directives should be reassured that they can change their minds at any time; as long as they also alter their health care directive to reflect their wishes; they may revoke or replace it as often as they like.

Depending on the state, some health care directives do not even require a notary. These documents should be placed in a safe deposit box or in the care of a legal professional, with all beneficiaries aware of where to retrieve the originals.

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