failing to plan

Failing to Make an Estate Plan

If you fail to plan, you are planning to fail”-Ben Franklin

This quote from Ben Franklin applies to the estate planning world.  In our practice we continually see clients who have never made an estate plan.  These are smart, successful people retired from impressive careers.  They have education, experience and have accumulated assets.  They have kids and grandkids and stepkids.  They need estate planning, or else they are (unknowingly) planning to fail.  Let’s take a look at some of the common pitfalls in failing to make an estate plan:

Failing to make an estate plan because you assume that nothing bad will happen. 

Good estate planning covers you for things you never even thought would happen.  Death of a child?  Spouse getting a dementia diagnosis?  You dying suddenly of COVID-19?  The types of things no one expects will be covered in a good estate plan. The bare minimum an estate plan should cover (usually by a will) is what happens when you die. Who gets your assets.  But the need for estate planning is even more acute if you do not die but get sick.  If you need assistance at home or in a nursing home, you need the tools in place to navigate through the change.  Who can speak with your doctors?  Who can help you trigger your long-term care policy?  What moves can you make to be eligible for Medicaid should you need long term care?  Too many of us assume that since nothing bad has happened yet, it never will.  But remember that “stuff happens.”  Make a plan while you can!

Thinking that you do not have enough to worry about or enough to afford a lawyer. 

Anyone who has something or someone to protect needs an estate plan.  You cannot afford NOT to make a plan.  Even modest estates deserve careful consideration.  Sometimes with less money, the demands on the money are more urgent.  Therefore you have more of a need to pre-plan the priorities you see fit.  Also blended families need proper planning to avoid conflict down the road.  Make a plan so your priorities are met-you cannot afford not to.

Thinking that Power of Attorney and Health Care Directives are not needed until you get sick (or lose mental capacity). 

Actually this is backwards.  After someone is sick or loses mental capacity it is likely too late to put these powers in place.  No one can see the future or know which will be the last good day on which to sign documents.  When will you be hospitalized? When will you get a dementia diagnosis?  Emergencies are never expected or planned.  You need someone now who could talk with your doctors if you got in a car crash or had a stroke.  You also need someone who can pay your bills and see to your finances if you are out of capacity.  Failing to make an estate plan means you are planning to require a guardianship, where a court appoints someone to take care of your person or property or both.

Believing in “one and done” for estate planning. 

Many clients ask if they did their complete set of documents ten years ago and “no one has died” since then, why do a new set?  Well life changes. Even the law changes (usually slowly, but it does change.)  If you have a Florida power of attorney done prior to 2011 it will look very different from one done today.  The old ones are grandfathered, meaning they should still be accepted by the bank or financial manager you present it to.  The reality is that the further we get from 2011 the fewer bankers and money managers will be familiar with or ever seen one of the old forms. Also if you have documents from another state, which look substantially different in form, they may not be accepted in Florida.  Moving here does not invalidate your documents, but the Florida professionals you will be working with will be unfamiliar with the out of state forms and you could experience a delay or refusal to accept or give effect to those documents.  You need to make sure your plan is current!

Not getting advice from the right lawyer. 

It may be tempting to download forms from an internet site.  It’s free!  They say they are compliant in Florida! What could go wrong?  Well there are many optional provisions in each of the estate planning documents.  You will need a translator to understand what some of them mean.  You will need advice and counsel on who should be named as your fiduciary under each document.  If you are older or have a disability, your plan should take into account pre-planning as much as possible for Medicaid down the road.  The website will not tell you any of that.  Neither will a general-practice lawyer be able to guide you in the way that you need guidance.  There is a reason in professional fields for specialists.  You should not ask your internist to treat your heart condition.  You can and should ask your internist to refer you to a cardiologist. If you have a family attorney, you should seek his or her referral to an experienced elder care attorney.  If we work with you on making your plan, it will be less expensive than trying to untangle the mess which results from a failing to make an estate plan.

Don’t plan to fail by failing to make an estate plan!  Call us at 239-434-8557 for a telephone consultation about your estate planning needs.

Leave a Reply