Do you want to deal with this now or let your family deal with it later?
The title of this article came from my childhood clumsiness. I was known for spilling my drink when my family went out for supper. It got to the point that my father would ask me at the start of a meal, “Do you want to spill your drink now, or wait until later on?” He knew I would spill it at some point, so why not get it over with, he joked.
I was reminded of this when someone emailed me recently and asked me how they could convince a loved one that they need to do a Will. I explained to the person what my normal process is for estate planning clients. When I meet with clients, I go through what the law provides for in the absence of a Will. Most people will choose to do something other than what the government has chosen for them.
But the more I thought about the request, the more I realized that the legal reasons why people need to do an estate plan are not the reasons that are going to make them “just do it”. Doing an estate plan is admitting that you might actually die, and for some people, this is hard to deal with. Death and dying are difficult things to talk about, especially with a stranger, and especially a stranger who happens to be a lawyer. Although I feel that I am pretty approachable and accessible, I do understand that going to see a lawyer for many people can be intimidating.
So, we’ve established that talking about death and dying with a stranger, who is a lawyer, is intimidating. Now, let’s look at how an individual’s family would feel dealing with this situation after the passing of a loved one
The family will be shaken by the death of a loved one. In the immediate after math, and possibly even before death, there would be decisions that would have to be made.
If the situation called for the possibility of organ donations or required someone to make financial or personal care decisions for their family member, without an estate plan the family would not know what to do.
After the death, one of the first things that needs to be done is to make the funeral arrangements. In the absence of an estate plan, the family would not know what to do. How would they know what their loved ones wishes were? All these decisions would need to be made by the family without the benefit of knowing what their family member would have wanted.
The next step is to look at how the family is going to deal with the loved ones assets. The family would speak with the bank and any professional advisors that the deceased might have had. One of the first calls is often to a lawyer. If the deceased did not have an estate plan, the family will call a lawyer that someone knows perhaps or they could just pick a name out of a phone book.
So, a family in shock and reeling from the death of a loved one must also be put in the position of talking about death and dying with a stranger.
But it doesn’t have to be this way.
We all could give a gift to our family members by having an estate plan. Only you can do this for your family, because once you are gone, the decisions become theirs to make.
When doing an estate plan at Allinotte Law Office, I make the process as painless as possible. I deal with clients in a caring and compassionate manner and help make the decisions that are best for them and their family and, if applicable, for their business. I invite my clients to bring in their family members to meet me so they know who I am and who to contact in the event that their loved one passes. Because it is not possible to meet everyone in person, I do provide letters to the possible executors of an individual’s estate as well as the possible guardians letting them know what their duties are and how to contact me. Although they have not met me in person, I am no longer a stranger.
But no matter what my process is, I cannot force someone to come in to my office. You need to choose to make that first step. The only thing I can tell you with certainty is that at some point, the issues surrounding your death or incapacity will need to be dealt with.
So I ask you this: Do you want to deal with this now or let your family deal with it later?
The baby that came with instructions
A couple of weekends ago, I had the pleasure of babysitting my little 5 1/2 month old nephew. My parents are away and my sister-in-law’s family does not live in the area, so I was on duty so my brother and his partner could go to a comedy act in Ottawa.
My kids and I were excited to have the chance to spend some time with him, but I was a bit late getting home due to a work issue. When I got home, my nephew had already been there with my husband for about 45 minutes. He was getting a bit fussy, so I scooped him up and tried to soothe him and I ultimately ended up putting him down for what I thought was a quick nap. I was wrong – he slept the entire night! There was no play time at all!
Because I had come home in such a rush, it wasn’t until after he was asleep that I saw the instructions. My sister-in-law is very organized, and had a full sheet of printed instructions about his routine, eating habits, how to change his diaper – it was all there. At the end of the instructions, she let me know where all their important documents were stored in their house, presumably if something were to happen to her and my brother. She wrote “you’ve prepared me well!”.
But there was just one problem. I had no legal authority to keep and care for my nephew in the event that my brother and his partner didn’t come home from the comedy show. If that little guy’s parents had never showed up, I would have had to call the police. Without any documentation appointing me as his guardian, I would not have the legal authority to take care of him until his custody had been decided. There is a very real possibility that he would have to be placed in foster care, even if only temporarily. I don’t know about you, but I wouldn’t want a child I love to spend one minute in foster care when he could be with people who love him.
Unless they have seen another lawyer recently, I know my brother and his partner don’t have an up to date estate plan to deal with their blended family situation. I think my brother might have a will, but I’m pretty sure what is in there no longer applies. I don’t know if my sister-in-law has a will. Yes, just like the cobbler’s children have no shoes, my family members do not have their estate planning documents in order.
I asked my sister-in-law for her permission to write this blog about her. She will read this, so I know she will be taking steps in the very near future to make sure that her family is protected by updating her estate plan and doing a Kid’s Protection Plan to appoint long term and short term guardians.
Do you know what would happen to your children if you and your spouse or partner didn’t come home from “date night”? If you are like my sister-in-law and haven’t appointed long term and short term guardians for your children, call my Client Services Director, Erin McEvoy at 613-933-7720 or click here to set up an appointment for a Family Wealth Planning Session with me.
As a special advance bonus to my blog readers, if you are a parent who owns a home in the Cornwall area and you make an appointment for a Family Wealth Planning Session between now and the end of February, I will give you a $75.00 gift certificate to a local restaurant of your choice. But you have to mention this blog post to get the gift certificate!
I only have a limited amount of spots available and I will soon be opening up this offer to the general public. Once my appointments are all filled, the gift certificate offer will end, so act now to secure your appointment (and your gift certificate!).
If You Really Can’t Decide on Who to Name as Guardians, Here’s What to Do
There are a lot of parents out there who have not named
guardians for their kids because they really can’t decide.
You might be one of them.
But, here’s the thing. If you don’t decide and something happens to you, the decision gets made by a Judge.
You don’t want that, do you?
Here’s a few things that may help you decide:
1. Think through on a practical, realistic and non-emotional (to the extent you can) level who would come forward to raise your kids if you were in an accident.
2. Is that who you would want to raise your kids?
3. If not, who would be better than that person or those people?
4. If more than one person would come forward, who
would a Judge pick if the Judge had to decide between all
the people who would come forward?
Bottom line?
If you don’t decide, a Judge will. Even your worst choice would be better than that, right?
The free KidsProtectionPlan.com website will walk you through the entire process of choosing the right guardians for your kids and then legally document your decisions.
If not knowing who you want to name has been holding you back, don’t let it hold you back a second longer.
Do it now. It’s Free. It’s Easy. No Excuses.
By Alexis Martin Neely. Reprinted with permission from www.familywealthmatters.com
Why Parents Need an Estate Plan
As a parent, I know that life is busy. It took me a while to get an estate plan completed, and I’m a lawyer. But here is the thing: it is something you MUST do. Why? Well, read on.
1. Protect Your Children
Having a proper plan will allow you to name both temporary and long term guardians for your children. Right now, without a plan, if you and your spouse passed away, the court would appoint a guardian, and that person might not be who you would have chosen to care for your children. At worst, the person you would never want to parent your children could be appointed.
Also, if you have not appointed any guardians and there is no one locally with authority to care for your children, there is a risk that your children could be placed temporarily with the Children=s Aid Society until this could be sorted out. As a mother, I cannot imagine that happening to my children.
As well, with proper estate planning, you could provide for how you would want your property distributed to your child (and future children) in the event that you both passed away. For example, you could set up a trust so that your child would inherit any property at specified ages, for example, part at age 21 and the remainder at age 25. In the absence of a plan, your property would be held in trust for your child and managed by a government agency until your child reached 18, when all of it would all be distributed to him or her outright. I know that I would not have been very responsible with any large sums of money when I was 18, and most of my clients agree and decide to wait until the children are older for the funds to be distributed.
2. Distribute Your Assets the Way You Want
Your estate plan will also allow you to determine what should happen to your property if one of you were to pass away, leaving the survivor as a single parent. Currently, if the value of your estate is over $200,000, the surviving spouse is entitled that amount. The remainder of your estate would then be divided equally between the surviving spouse and your children. The funds for the children would be held in trust and managed by a government office and distributed upon the child attaining the age of 18. The surviving spouse could only manage those funds if a court application is made and even then, the funds would still require distribution at the age of 18.
3. Appoint a Person You Trust to Administer Your Assets
Aside from all the estate planning issues that come up as parents, your Will can provide for who will administer your assets and property in the event a death of you or you and your spouse. Right now, without any planning, someone you love, even the surviving spouse, would have to make an application to the court to be appointed as the person to administer your estate. Again, this person may not be who you would have wished to make these decisions for you.
4. Provide for Incapacity, or Give Your Loved Ones the Power to Make Decisions
Protecting your children and your assets is not the only important reason to do estate planning. As part of our plans, we would draft Powers of Attorney for Property, and Powers of Attorney for Personal Care. This would allow you and your spouse to make decisions for the other in the event that one spouse became incapacitated. As part of this process we also appoint alternate individuals to act in the event that both of you are incapacitated or there is only one surviving spouse who can no longer handle his or her personal affairs, or medical decisions.
Making decisions for a loved one who is incapacitated without a Power of Attorney is a bit of an unknown. Under the legislation, the spouse is one of the persons entitled to make decisions. However, without a document specifying who will make the decisions and what decisions should be made, there is the risk of disagreements between family members, especially if difficult personal care decisions need to be made. In the event that both you and your spouse were incapacitated or one of you had passed away, things can become even more complicated.
We also can do a Living Will instruction as part of our Power of Attorney for Personal Care. This would allow you to specify any conditions regarding your personal care in the event you were unable to make decisions for yourself, or each other. Many clients choose to include a Ano extraordinary measures@ clause, but you may have some additional conditions you would like to add.
Michele R.J. Allinotte is a lawyer in Cornwall, Ontario who focuses on estate planning, business law, and real estate. You can find out more about her at www.yourcornwalllawyer.com.
