Planning for end-of-life sounds like a bummer. For the young and healthy, the thought of making decisions about a far-off event may seem a bit premature. And spending money on advance directives? To the uninformed, this may be the most off-putting.
It doesn’t take much prompting for an Elder Law Attorney to tell stories about families without an estate plan who paid more than they ever bargained for – in time and money. There are many reasons to memorialize your aging plan in writing. But for those who aren’t inspired to protect their person and property, let’s look at what happens if you don’t.
3 Ways Life is Harder Without Advance Directives
- No one to pay your bills or make medical decisions for you.
- The court will assign someone to speak for you.
- Your property is being put on hold.
1. Without advance directives, no one can make decisions for you.
Example: Car accident, complications from surgery, or permanent cognitive impairment
You want someone you trust to handle your affairs if you are unable to do so yourself. A properly executed durable power of attorney allows your attorney-in-fact to make decisions about your property on your behalf. Without estate planning documents, your care can become a matter of the courts or assigned to someone who doesn’t know your wishes and values.
Decisions Made by a Power of Attorney
Pay bills and medical expenses
Oversee and direct investments
Sign deeds
Enter contracts
In Florida, a durable power of attorney must include a specific provision for “superpowers” – such as gifting or applying for public benefits. Rather than giving sweeping powers to an attorney-in-fact, the principle will specifically mention the authority given and physically initial the section in the document. If you haven’t designated someone with the power to pay the bills, the ripple effect could become quite expensive.
Appoint a Health Care Surrogate for Medical Decisions
A durable power of attorney doesn’t always include medical decision-making. It is advisable to choose a health care surrogate who knows you and is aware of your beliefs surrounding medical and end-of-life care. When there are medical decisions to be made, your surrogate will follow your instructions regarding the types of treatment to provide or withhold.
Decisions Made by a Health Care Surrogate
Healthcare treatments
Admission to healthcare facilities
Access to medical records
Your health care surrogate will be the go-to person for your medical team. While they will not have instructions from you regarding every medical possibility, they will make decisions based on your best interests. You chose this person because they know you best and will dictate medical treatments according to your wishes.
What Happens if I Don’t Have Advance Directives?
In short, the court will have to appoint a guardian. There is no “automatic guardianship” for an individual, including the appointment of the spouse as guardian of an incapacitated person. If you are in an emergency that requires quick decision-making and you haven’t designated a power of attorney or health care surrogate, your family could find themselves waiting weeks for a resolution. Guardianship doesn’t only take time, it takes money.
2. Guardianship is hard on people and pocketbooks.
Example: Your mom has been diagnosed with dementia and lives at home alone. She is no longer able to care for herself and needs a private duty caregiver or to move to assisted living, but she refuses. She does not have a power of attorney or health care surrogate.
If you don’t have properly executed advanced directives, you don’t have someone who can legally make financial or medical decisions on your behalf. Without appointed decision-makers, you can be referred to the court for guardianship. After the appropriate proceedings to determine your lack of capacity, you become “the ward” and are assigned a guardian.
If you aren’t inspired to complete paperwork that protects your assets and provides direction to your family and friends, a few facts about guardianship may change your mind. Guardianship strips you of rights to which you are entitled as a citizen of the United States because you are deemed incapacitated by the court. It is emotionally and financially draining for both the alleged incapacitated person and their family.
What Does Guardianship Cost?
While actual costs vary from case to case, the cost includes court costs, the examining committee fees, the court-appointed attorney’s fees, and your attorney’s fees. This can often add up to $5,000 to $7,500 or more. Fees and costs continue after guardianship is determined and can range from $300 to over $2500 per year.
Guardianship Drains More Than the Bank Account
And that’s just the financial cost of the proceedings. Your family can be drained due to the expense of the proceedings and lack of access to funds while the court determines who can make financial decisions for your estate. Additionally, without access to bank accounts and other resources, your family may struggle to pay bills and maintain your property.
Emotionally, it is difficult to watch a loved one struggling with the ability to make safe decisions. The time and stress of court proceedings could have been easily avoided with the proper execution of a durable power of attorney and a health care surrogate. The cost, both financially and emotionally, will be far less if the decision is made earlier in life to obtain advance directives.
3. You can avoid probate with advance directives.
Example: Your mom is living with her second husband, a man she met late in life and has found happiness with after the loss of your father. Her second husband passes away suddenly – but never added her to the deed of the house. Is she going to be able to stay in the home?
It doesn’t matter how large or small your estate is, you can still give directions after death with a well-drafted estate plan. A board certified Elder Law Attorney has the knowledge you want to tap into when it comes to keeping your property out of probate and in the hands of your designated beneficiaries. Probate is a long, drawn-out process that can be expensive.
You can talk to your Elder Law Attorney and decide which pathway is best for you to avoid probate. Without direction, your property will be held in probate and then distributed according to the Florida laws of intestacy. Each asset needs to be considered to create a proper plan.
Elder Law Attorneys Are Here to Help
An Elder Law Attorney can help you evaluate your options in estate planning and create a plan that works for you. The goal of any aging plan is to meet your needs and protect your assets, giving you a voice even when you are no longer able to speak. An experienced elder law and estate planning attorney understands the legal issues seniors and their families face, answering difficult questions and helping them avoid common mistakes.
Attorneys who specialize in estate planning and elder law are a unique breed. They are focused on solving problems and helping families avoid financially and emotionally draining situations. From navigating difficult family dynamics to protecting seniors from abuse and exploitation, elder law specialists are driven by a passion for helping seniors.
Their expansive knowledge and compassionate guidance are two reasons Elder Law Attorneys are a Resource We Love. Learn more about how they can help you avoid the consequences of failing to create an aging plan in the Legal and Financial Section of our Blog.