Discussing Estate Planning with Your Family

If you have elderly parents, you know how stubborn they can be about discussing important issues in their life.  Having a simple discussion about whether an older parent should still drive, suggesting that they should no longer live at home and should consider assisted living or even asking about finances can seem intrusive or overbearing.

If you’ve ever asked a parent if they have planned for their death or how much medical treatment they want at the end of their life is also a difficult, yet crucial discussion to have with elderly family members.  And you need to be having this discussion sooner rather than later.

Here is why:

First, all estate planning documents require capacity to execute them.  That is, the person signing the documents has to understand them and must be lucid to sign.  When a person no longer has capacity to execute a power of attorney, for example, the courts must decide who will the guardian and conservator of that person in a guardianship hearing.  In Missouri, anyone can file a petition for guardianship.  That can be a problem if you have other family members who want to be in charge but its questionable whether they can act responsibly.

Second, failing to plan can create tremendous problems down the road.  Estates can get tied up in probate for several years and can be contested among family, causing tremendous emotional pain and financial burden.  I’ve represented family members in these situations and it takes a tremendous toll on all parties.

Third, estate planning is not that all that complex if you sit down with an estate planning attorney that can tell you what you need and what you don’t.  The general rule is that the more complex your situation is, the more complex your estate plan will be, but at present much of the complexity of estate tax planning is a non-issue for the vast majority of clients.

Finally, failure to have a plan could result in an unnecessary emergency.  For example, let’s say that Mom has passed away and Dad needs to go into a nursing home but in order to do so, their children need to be in control of his finances and his healthcare making decisions (through a financial durable power of attorney and healthcare power of attorney) so that they can help him select and pay for the home he will stay in.  Without those powers of attorney in place, none of this can be done.  If Dad needs a nursing home, chances are very likely he needs someone to help him with that process.

If you have an elderly family member who has not created an estate plan, sit down with them and try and have an open conversation with them on the topic.  Having other family members there might help.  You don’t need an intervention setting, but sometimes letting that family member know that you all care and are concerned can do the trick of getting a stubborn family member to act.