A potential client called me earlier in the week to ask if I needed a will. The person he called was not married and had no children or grandchildren. She did not own any real estate. All of his bank accounts had beneficiaries payable on death and he owned minimal personal property. He had the perfect plan; nothing was going to happen by probate, so he didn’t think he needed a will.

You may not need a will. I didn’t know exactly, as self-help estate planning often leads to mistakes or properties that don’t have the proper designations. In this situation the will is prophylactic. It ensures that if a mistake is made or a beneficiary designation fails, that property passes to the intended recipient.

I changed the discussion from planning for death to what kind of planning did he have for his life. I asked if he had a power of attorney for finances. His answer was no. “Do you have an Advance Health Care Directive (also known as a Health Care Power of Attorney)?” “Do not.”

The lack of such planning worried me as I knew he didn’t have a partner or children to take care of him if he couldn’t take care of himself. What would happen to him if he had a stroke or suffered from dementia or Alzheimer’s? Perhaps his brothers would intervene to take care of him, but how? They would have to spend his money to set up conservatorship and conservatorship or other court proceedings. These processes take time and money to set up and are expensive to manage.

To help you deal with your finances, you could execute a spring power of attorney for finances that would give a trusted sibling or relative the ability to manage your finances if you become incapacitated and unable to do so. It is called spring power because it only becomes effective in the event of incapacity. The power of attorney can provide broad powers and sets forth detailed instructions on what the designated agent can and cannot do on behalf of the person. More importantly, it would allow the caller to designate who they want to manage their finances, not a judge. Drafting and executing a power of attorney in this situation is relatively inexpensive compared to the cost of establishing and maintaining a guardianship.

In Oregon, an advance health care directive would help a caller designate a health care agent to make health care decisions for them when they are unable to do so. It would potentially eliminate the need for guardianship proceedings. The representative can make decisions based on the indications that are left in the directive. Among the decisions that the representative can make is to withhold or withdraw life support, food or hydration. Advance health care directives do not authorize euthanasia, assisted suicide, or any overt action to end a person’s life.

This example is part of the problem with self-help planning. Although the person he called was very thorough in planning his death, he did not think about his life. In the case of this person he called, life planning was much more important than death planning, but he hadn’t thought about it.

© 09/27/2013 Kevin J. Tillson of Hunt & Associates, PC All Rights Reserved.