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Why Estate Planning?

Updated: Nov 11, 2022

Captain’s Blog: 005

Not Everyone Gets the Golden Ticket

Our state and federal laws impact each of us every day, whether we're aware of them or not. Some laws are literally in our faces, posted on big signs (like the speed limit), and some laws have penetrated our public consciousness (like “Don’t Text and Drive”). However, other laws—like estate planning—quietly confront us without the benefit of billboards or media campaigns at very specific times in our lives. We assume that these “specific times in our lives” will be…you know…later. Yeah. Much later. So we put them on the back burner, and we vow to learn those laws…later.

Some of us have vague awareness of the laws that arise at specific times in our lives. The Last Will & Testament is in the movies an awful lot, and there’s that thing called a Power of Attorney. But many folks believe there’s plenty of time to learn about that stuff when they’re older.

The truth is: Legal planning can come into play at any time throughout our lives, without exception. Some people are lucky enough to skirt a health crisis until much later in life. However, laying money on the fact that you’ll win the Golden Ticket of robust health for the majority of your life is a risky game of roulette. If nothing else, the 2020 pandemic taught us that life can be unpredictably fragile.

Even if you are the recipient of that Golden Ticket, your adult loved ones aren’t necessarily joining you on that winning streak. Your mother, your father, your spouse, your child, your brother, or your sister may experience a health emergency that requires legal attention regardless of their age. Frequently, family members become involved in a loved one’s health emergency, and suddenly they are thrust into the arena of law.

Try to think of all the ways a person could lose their ability to make decisions. The first entries on your list may be diseases with cognitive decline, such as Alzheimer’s or Parkinson’s. These diseases are frequently considered afflictions of old age; however, early-onset Alzheimer’s and early-onset Parkinson’s are tragically the reality of many adults who have not yet reached retirement age by a long shot.

Although we seldom consider it, circumstances that affect cognitive functioning are not solely reserved for the elderly. Adults of all ages undergo surgery with anesthesia every day. During the time of unconsciousness, patients are unable to make decisions. This is precisely why the President of the United States transfers his presidential powers to the Vice President when he undergoes anesthesia, even when he’s merely sedated for a routine, diagnostic procedure, like a colonoscopy. Quite simply, the President is unable to make decisions for our country while his cognitive functioning is compromised.

Sometimes, the inability to make decisions extends beyond the unconsciousness of anesthesia. Those who lack decision-making abilities due to prolonged recovery, illness, disease, stroke, or traumatic brain injury need someone with legal authority to help them. Regardless of age or health affliction, the world unfortunately keeps spinning. Bills need to be paid and financial accounts need to be managed.

The 25th Amendment of the United States Constitution spells out the transfer of power to preserve our Union in the event that the President or Vice President becomes incapacitated, disabled, or dies. In other words, if the President loses the ability to make decisions, and the Nation is all, “OMG! What do we do now?” then the answer to this question is: “The 25th Amendment tells us exactly what to do.” The affairs of our country continue with a seamless transfer of power.

Sure, you’re not the President of the United States, and we’re not talking about the continued functioning of our government. We’re talking about you, personally. But in the event that you lose your ability to make decisions, who pays your rent or mortgage? Who pays your health insurance bill? More importantly, who makes health care decisions for you?

Most married couples rely on their spouse to manage affairs if one becomes incapacitated in any form. Married couples typically have joint checking and savings accounts. They implicitly depend upon each other to make sound health care decisions for them. However, what happens when a married person possesses an individual banking account? What happens if the couple is together at the time of the accident? Who will manage finances then? Who will make health care decisions?

A Durable Power of Attorney and a Designation of Health Care Surrogate are your personal 25th Amendment. (Outside of Florida, these documents can be called a Financial Power of Attorney and a Medical Power of Attorney.) These legal documents are your set of instructions for others in the event of a health crisis when everyone is asking, “What do we do now?” These documents spell out your transfer of financial and health care powers. A Durable Power of Attorney and a Designation of Health Care Surrogate are two essential documents of estate planning.

The rich tradition of Law has left us with dated terms that are ridiculously misleading in our contemporary society. The term “Estate Planning” conjures images of aristocrats residing in grand castles, nestled among acres of rolling hills. When the Common Law of England—upon which our laws are based—was first created in the Middle Ages, those images were likely spot-on. Now, not so much.

The traditional notion of an “estate” does a disservice to the modern-day Everyman. The truth is: The most important estate planning documents have absolutely nothing to do with vast land ownership or the amount of Benjamins in your bank account, so these documents aren’t reserved for the uber-rich. A Durable Power of Attorney and a Designation of Health Care Surrogate allow you to choose specific individuals to make decisions on your behalf if you can't, which applies to all of us.

Because a health emergency can happen at any age, are you ready? Have you prepared your personal 25th Amendment? If you haven’t, then how will your loved ones know what to do? If your parents haven’t prepared these documents, will your family know what to do if Mom or Dad experience a health emergency? If your parents’ true wishes aren’t documented and they aren't able to make their own health care decisions, will all family members unanimously agree with a proposed medical treatment plan? What happens if family members disagree? Who decides then?

These questions spotlight the importance of preplanning. They speak to the reason why estate planning and other elder law topics are so very important to all of us. So let’s take some time together…right now…to learn a little bit more about legal planning through any one of our videos, articles, or blogs. Just learn one new thing today. And maybe, come back tomorrow, and learn just one more thing. It’s that easy.

Beach Barrister is a safe harbor where you can learn the basics of legal planning at your own pace. Each lesson is presented in a bite-size snippet, so it can be squeezed into the busiest of schedules. In addition, the material on our website is designed to ease you into law. Each video is shot sequentially, so you can build upon your knowledge. Our ship stays in the shallows until you’re comfortable enough to move into deeper waters…and we’ll be with you every step of the way!

We hope to see you again (and again) real soon!

Plan Early. Plan Often. Plan Well.

Beach Barrister is NOT a law firm. We are an educational forum. We do NOT legally counsel individuals based upon their specific life circumstances or planning goals.

Beach Barrister is NOT a substitute for legal counsel. We highly encourage every viewer of this site to seek a local, licensed, reputable attorney to assist you with your state-specific laws, planning goals, and execution of documents.


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