The kids are all right: Make the right decisions for your family with end-of-life planning

Everyone needs a will and certain other documents, and nobody should draft these documents themselves.

Before you go to a lawyer, however, it pays to have certain discussions with loved ones and to start asking yourself important questions.

1) Get a lawyer.

I can’t say that enough.

I have seen many bad wills in my day, and all of them were drafted without the assistance of a good lawyer. This is one task that you shouldn’t do yourself. Estate planning requires knowledge and experience in state law, including testamentary and real estate law, as well as federal income tax law.

Choose a lawyer who drafts wills as a large part of his or her practice. Estate planning is a highly technical area of law, so it’s best to choose a lawyer who works almost exclusively in this area.

When you hire a lawyer, you protect yourself against claims of undue influence, fraud, and incapacity. A good lawyer has practices in place to prove that you were of sound mind and weren’t making bequests under duress.

2) Don’t be afraid to have difficult conversations.

Nobody wants to face his or her mortality, but it must be done.

It’s important to express your wishes to your loved ones, particularly when it comes to the guardianship of your children, funeral instructions, and what end-of-life care you want.

Choose a time when your family is together and can focus on these topics. Let everyone know ahead of time that you’ll be discussing your estate plan and end-of-life wishes.

Be kind but firm. You are doing a wonderful thing for your loved ones by having these discussions and making decisions in the right way.

3) Understand which documents you need and what they’re designed to do.

Once you understand which document is which, your knowledge will shape the discussions that you’ll want to have with your doctor, loved ones, religious adviser, etc.

Every estate is different, and yours may or may not require a variety of instruments. These are the documents that everyone needs, however:

Last will and testament

A will has three main purposes: 1) Appoint an administrator (formerly known as an executor) to manage your estate, 2) Determine who will inherit your real and personal property, including your business interests, upon your death, and 3) Appoint a guardian for any minor children that you may have at the time of your death.

Springing power of attorney

This document appoints someone to make legal and financial decisions for you if you are still alive but become mentally incompetent. It “springs” into effect at the moment that you become incapacitated, but has no effect before then. Obviously, your general power of attorney should be an organized, responsible person who you trust to make decisions on your behalf.

Health care power of attorney

Unlike the springing power of attorney, a healthcare power of attorney is limited to health care decisions and does not include the power to make legal or financial decisions on your behalf. This could be the same person as your regular power of attorney or could be a different person. Like the springing power of attorney, it becomes effective once you become incapacitated—and it should of course also be someone you trust and who understands your wishes.

This person should be comfortable with your choices—or at least be able to carry out your wishes without serious moral and ethical dilemmas. For example, if you wish to refuse a feeding tube as you’re dying, don’t choose a relative who has religious objections to this decision.

Living will

A living will comes into play if you are unable to communicate your wishes regarding end-of-life measures. This document informs health care providers (and your health care power of attorney) regarding which measures you’d want to accept or refuse.

Commonly, you’ll hear people refer to an “advance directive.” That’s a living will that also appoints your health care power of attorney. Sometimes, these documents are combined.

This document should be very specific. Consider these questions, and discuss them with your loved ones or religious adviser if you wish: If you cannot eat, do you want a feeding tube? Do you want hydration delivered via an IV? If your heart stops, do you want to be resuscitated by CPR or a defibrillator? If you can’t breathe on your own, do you want to be put on a ventilator?

You will recognize these questions as those that were litigated among the family members of Karen Quinlan and Terri Schiavo. A living will is designed to prevent these disputes.

This is also a good place to specify whether you’re an organ or tissue donor, although you should also choose this on your driver’s license and tell your family and doctor.

4) Decide who will care for your children.

In your will, you’ll name guardians who will care for your minor children. You’ll want to name a guardian and an alternate in case the first person cannot or will not take the job.

Many people fail to discuss this appointment with their family members and with the people they name as guardians. Don’t skip this step.

You need to choose people who are reasonably healthy, financially solvent, and who share your values. This may or may not be your child’s grandparents or aunts and uncles.

5) Don’t do anything shady with estate planning.

In a misguided attempt to avoid taxes or to qualify for government benefits such as nursing home Medicaid, people sometimes try to hide assets. This is a recipe for disaster and is usually ineffective and illegal.

A common ploy: To qualify for Medicaid, an applicant puts real estate into a relative’s name and agrees with that relative that the applicant still owns the property even though it’s no longer in his or her name. Then, when the applicant applies for Medicaid, he appears to be impoverished and qualifies under Medicaid’s financial eligibility rules. This is fraud, and it’s illegal. It’s also risky, because the co-conspirator relative may decide that he or she actually owns the property and may deny the secret agreement. Now, the applicant may have lost his or her property, is barred from applying for Medicaid for five years, and may face fines or criminal charges. Government agencies have seen every trick in the book. The cost of dishonesty is very high.

There are legitimate ways to spend down assets or to avoid taxes. Stick to those.

6) Be thoughtful about who should receive your property.

Squabbles over property can tear families apart.

Be very specific about who should receive certain personal items. If you’re elderly and/or you don’t use a particular piece of furniture or wear an item of jewelry anymore, why not give these things to your heirs now so you can see them enjoy these pieces?

If you’re aging, consider downsizing. After a very trying death in the family and a funeral, it’s very hard on the survivors to be forced to immediately turn around and go through hundreds of unwanted items to distribute, give to charity, and discard. It’s a generous gift to relieve them of this onerous task.

Direct that any vacation or investment real estate be sold and the proceeds divided among your heirs. Do NOT leave a vacation property to more than one heir and expect them to share it. Instead, allow the property to be sold. If one or more of your heirs wants to buy the property, let them make that decision. Don’t force people to own things jointly.

7) Remember that wills don’t cover everything.

First, do not express your funeral and burial wishes in your will. It’s not binding, and many families don’t read the will until after the funeral. Instead, discuss your wishes with your family, write your instructions down, and give family members copies.

Second, keep the beneficiaries current on life insurance and certain retirement accounts—and give copies of the cover pages of these policies and accounts (WITH the policy or account number and company name visible) to your beneficiaries and to your lawyer and administrator.

Third, understand that wills don’t include “non-probate property.” For example, if you own a home with another person as joint tenants with rights of survivorship (JTWROS), then your interest in the home automatically passes to the other joint tenant(s) at the moment of your death. If this is not what you want, work with the other joint tenant(s) to change this to a different type of ownership.

The fallout from a death in the family can affect the survivors for years. It doesn’t have to be this way. If we make thoughtful, informed decisions and communicate these decisions with the help of a competent lawyer, we leave our loved ones with a legacy of peace and comfort.