By Mia Poliquin Pross, Esq.
One of my first questions to a new estate planning client is usually something like, “What’s your goal and what do you want to happen as you age and eventually pass away?” The most common answer is something along the lines of, “I want to make things easy for my kids and family, stay at home and save money if I can, and keep my family out of court.”
The worst way to achieve those goals is to do nothing. The best way is to take care of business while you still can. Arguably, every adult should have at least a basic estate plan in place. By the time one is in their 60s, they absolutely should. It should then be reviewed every five years or so and adjusted as needed.
A basic estate plan typically includes three documents: a will, a durable financial power of attorney, and a health care power of attorney with advanced care directives. More often than not, having those three legal documents in place is usually enough to cover the bases for most people. It’s probably more affordable than you think and can avoid many more expensive, and sometimes heartbreaking, problems in the future.
If you don’t have a will, your property, money, and belongings will pass according to Maine law. That may or may not align with your wishes. Having a will is especially vital for people with blended families, those who have no children, anyone with disabled family members, or people who have very specific wishes. In reviewing your assets, an experienced attorney may also make suggestions that will keep your estate out of probate. Even if you think you don’t have enough assets to worry about, you probably do. Even small estates can become unnecessarily complicated for loved ones if you fail to arrange things appropriately.
The will only controls things when you die. The other two documents of a basic estate plan allow you to make important choices for while you’re still alive, but incapacitated in some way, for example, if you develop dementia or Alzheimer’s or some other serious health issue. Power of attorney documents allow you to appoint someone you trust to take over financial and health care decision-making when you can’t do those things on your own. You can also provide that person with direction for your end of life care and make other significant choices in these documents.
It’s crucial to get power of attorney documents done while you are of sound mind and can fully understand your choices. Do not wait until you’re in your 70s, 80s, or 90s to take care of this. Sometimes people decline quickly and unexpectedly. If you wait too long and start to have memory or health issues, it may be too overwhelming or too late at that point because you’ve lost legal capacity to sign the documents. If that’s the case, someone will have to petition the Probate Court to become your Guardian and/or Conservator. There’s a risk that it may not be the person you’d choose for yourself if you still had ability to do so. Also, the legal process can be lengthy, contentious, and expensive and generally not something you’d want to put yourself or your loved ones through. It is much better to make these choices while you still can, get the documents done, and avoid these problems in the future.
Another tip: don’t download questionable legal documents from the internet and don’t copy documents from a friend or family member. Everyone’s situation is different and it’s best to not rely on anecdotes for legal advice. I know – thinking about incapacity and death is no fun, but it is important and necessary and it’s best not to cut corners. A good attorney can compassionately walk you through these weighty decisions, help you achieve your goals, and can be a trusted partner as you age.
Originally published in Sun Journal Estate and Funeral Planning Guide, April, 2021