Craig R. Hersch
Florida Bar Board Certified Wills, Trusts & Estates Attorney; CPA
Several times a year, I receive a telephone call that goes something like this: “Hello, my friend gave me your name and I really need your help,” the caller says.
“What can I do for you?” I begin.
“My dad needs a Will…and a Durable Power of Attorney. And while I’m thinking of it, she should also have a Health Care Surrogate.”
“So, it sounds like your father needs a complete estate plan. Does he have any of those documents now?”
Sometimes the answer is “No.” Other times the answer is “Well, his documents were done 20 years ago, so I’m not sure they’re relevant anymore.”
So, my next question is, “When would he like to come in to go over her estate?”
It’s usually followed by answer that I never want to hear.
“Well, that’s the problem…Dad’s in the Intensive Care Unit at Health Park. He suffered a massive heart attack and we don’t know how much longer he’ll be with us.”
“Oh my! I’m sorry to hear that. Is he competent to discuss his estate plan with an attorney? Is he on any medications that might alter his state of mind?”
There’s usually a long pause on the line before caller says, “Well, he does have lucid moments when he knows that we’re in the room with him.”
I feel sorry for people who get trapped in this type of a situation, but honestly it falls under the category of too little, too late. Procrastination can be extremely detrimental, especially regarding something as important as creating the legal documents necessary to take care of yourself in the event of a health problem or distributing your assets to your loved ones at your death.
While not one of us likes to consider the possibilities of our decline in health or even our own demise, these are realities of life that will happen to all of us. It’s not a matter of if these sorts of things will happen, but instead it is a matter of when they will happen.
The hospital ICU ward is not the ideal place to make these types of decisions. A major problem when working with a client who has recently been traumatized with a major health event is in determining whether they are legally competent to sign anything.
To create a will, for example, one must be able to understand the extent and scope of one’s assets and how those assets are to be distributed under the terms of the will. It sounds like a low standard, but someone who is on morphine or other pain medications probably lacks capacity, at least at that time. And for those who suffer strokes or other brain issues, they may never recover to the point of having capacity.
Undue influence is another concern. When a patient is surrounded by particular loved ones when creating a will, there’s the chance that others who were not present and who may not benefit (or benefit as much as someone else does) under the will can claim that the patient was unduly influenced, and therefore the will should be overturned. The law may actually favor the challenger as it presumes undue influence in these types of situations.
Another problem is that not all estate plans are equal. The client may need a will or they may need a trust. That depends on a variety of factors including the types and amounts of assets that they own. When you create a will or a trust there are many sub-issues that should be carefully thought through, including who is going to serve as your personal representative, trustee, agent under a durable power of attorney and health care surrogate. Distribution issues must be considered, beneficiary forms conformed to the estate plan, as well as life insurance, estate tax and income tax planning issues to name a few.
Sometimes one can successfully navigate these issues while in the hospital, or even under hospice care. It’s likely going to cost a lot more in professional fees since everything is on a rush basis and the attorney and their team are going to have to travel to the hospital to review documents and obtain signatures.
In short – dealing with this scenario is a nightmare for the patient and for his family.
Do yourself a favor – make sure that you don’t find yourself in this situation. If you or a loved one has procrastinated completing your estate plan, hopefully this column will jump start you into getting it started.
©2023 Craig R. Hersch. Learn more at www.floridaestateplanning.com