Last Will and Testament
The center of any good estate plan is a last will and testament. The last will and testament lays out a list of assets, how to distribute those assets, and who will receive them following your client’s death. A last will and testament ensures the right hands receive your client’s assets posthumously. If your client doesn’t have a last will and testament, the state decides how to distribute those assets according to that state’s intestacy law.
Trust
There are different types of trusts, and you must consider your client’s unique circumstances when determining which trust to include in the estate plan. Generally, a trust limits the court’s interference in transferring the assets held in the trust. The trust will save your client’s family time and costs associated with dealing with the probate court.
Durable Power of Attorney
A durable power of attorney allows your client to give someone else legal authority to act as their agent and make financial decisions on their behalf. A durable power of attorney should include language stating that the agent’s authority will continue even upon incapacitation, which will help avoid guardianship.
Designation of Healthcare Surrogate
A designation of healthcare surrogate in an estate plan allows your client to designate a healthcare surrogate to make healthcare decisions on their behalf upon incapacitation. Arguing over issues concerning healthcare treatment may be traumatizing to family members. Appointing someone that your client trusts ahead of time prevents conflict and confusion amongst family and physicians and ensures your client’s wishes are fulfilled.
Living Will
Along with the designation of healthcare surrogate, a good estate plan should include a living will that gives medical care providers directions on how your client wants to be treated in an end-of-life scenario. For example, a living will can include whether a client wishes to receive life support or other treatment that will artificially prolong their life. If your client becomes terminally ill and incapacitated, the designated healthcare surrogate could use the living will to make the appropriate healthcare decision according to your client’s wishes.
The Risks of Failing to Create an Estate Plan
Without an estate plan, the most significant risk the elderly face is needing an adult guardianship. Depending on your state’s law, if an elderly person becomes suddenly incapacitated, the court will appoint a guardian to make decisions for them. An intricate estate plan protects elderly clients by avoiding an adult guardianship, which is highly intrusive, expensive, and traumatizing for all parties. The appointed guardian may receive the full authority to decide health care, finances, and personal needs. Depending on your client’s condition, your client may not have input on who the court appoints as guardian—it may be a family member, friend, or a stranger acting as a professional guardian. Depending on the level of incapacity, this guardian could control almost every aspect of your client’s life, opening the door for potential abuse.
The consequences of failing to assist the elderly with creating a solid estate plan vary by state. The best way to preserve the dignity and autonomy of your elderly clients is to make sure that their wishes are honored.
