LIFETIME PROTECTION

     An important step in planning your estate is to take precautions to protect you and your assets during your lifetime. Many people believe that if they have a Will, their planning is complete. While a Will is essential, it does not protect you while you are living; it only takes effect after your death. If you or a loved one succumb to incapacity or incompetency, both your physical and financial well being may be at risk if you fail to put the proper plan in place. Lifetime protection can be accomplished by setting up a Living Trust and advance directives, including a Durable Power of Attorney, Living Will and Designation of Health Care Surrogate, in which you authorize others to manage your assets and health care decisions for you while you are still living. For example, let’s consider Evelyn’s dilemma.

     Evelyn is 77 and a widow. She has 2 adult children, Toby and Janet. Toby who lives a few miles away but travels extensively while Janet lives in another state. Evelyn owns a home, still drives her own car and has a bank account and financial investments. She has no Will or other estate planning or lifetime protection devices in place.

     Evelyn fell and broke her hip while cleaning her house. She went into the hospital to repair her hip and while there, she suffered a stroke which left her mentally unable to take care of herself and her affairs. Upon her recovery from the broken hip, since neither Toby and Janet could take care of her, they felt it was best to move Evelyn to a nursing home.

     Toby and Janet attempted to take over management of Evelyn’s finances and health care decisions. However, when they went to the bank to take charge of Evelyn’s checking account so her bills could be paid, the bank refused to give them any information. The same was true of her investment accounts. Nor would Evelyn’s doctors let them make her health care decisions. Toby and Janet discovered that they had no legal authority to handle Evelyn’s financial of physical needs and that one of them would need to appointed as her legal guardian.

     Since he lived closest to Evelyn, it was decided to have Toby appointed as her guardian. He hired an attorney to handle the legal proceeding. The guardianship process was both costly and time consuming. Toby soon learned he had to apply to the court, through his attorney, for approval of each and every action and expenditure he made on his mother’s behalf.

     Had Evelyn put in place some lifetime protections while she was competent, a guardianship would not have been necessary. Toby would not have to be appointed as his mother’s legal guardian to have the authority to manage her assets and make health care decisions for her. By establishing a Living Trust and advance directives, including a Durable Power of Attorney and Designation of Health Care Surrogate, Evelyn could have named Toby or Janet to handle her affairs. Either of them could have merely stepped into Evelyn’s shoes and handled her financial and health needs upon her incapacity without attorneys’ fees and court proceedings.

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