Choosing the people to whom you want to assign responsibility in case the worst happens is a stumbling block that keeps many of us from creating estate planning documents, such as wills, trusts and powers of attorney. Who should my executor be? Who could manage money for kids who will be my heirs? Who would I trust to make medical or financial decisions for me in an emergency? Who would be willing to raise my kids if neither of us was around?
None of these are easy decisions, and there are very few rules to guide you. As an attorney, working with clients to zero in on who belongs on your team is one of my most important estate planning jobs. Often, I help clients expand their thinking and consider people they may not have imagined in these roles.
For tasks that involve financial management and require organizational skills, I recommend that you focus on people whom you know to be financially savvy. This seems obvious, but I’ve learned that many clients don’t approach it that way. They tell me that have already named a particular relative — or plan to do so. Upon closer examination, it’s not unusual to learn that that candidate has been in bankruptcy or is a shopaholic. If that’s the case, I always urge the client to think again. Instead, for financial roles, I like to suggest a relative or friend — this person does not have to be related to you—who is very organized. Maybe he has tracked his finances in Quicken for 20 years or she has worked in a money-related field, such as banking. At the bare minimum, you want someone whom you believe has a solid, sensible relationship with money over the long haul. These types of folks will make ideal choices for executors, financial power of attorney backup agents and trustees of any type of trust, especially where the money is to be managed and distributed over a long period of time.
On the other hand, some roles are more people-focused, such as healthcare agents and guardians who are responsible for raising kids (but not necessarily for managing their money). In this arena, empathy, support, caring and familiarity with the healthcare system are the traits you should look for more than management skills. A person who is already a caregiver will likely be able to assume this role for you. Perhaps that’s someone who is a healthcare professional such as a nurse or a staff member at NIH, but it could just as well be someone who has helped look after an elderly relative. Do they have their own kids or have they helped to raise younger siblings? If so, they probably will be able to raise yours.
One rule is paramount: every person that you plan to name to serve in any role must be consulted in advance and given the opportunity to accept or reject your request. In my experience most people are flattered to be asked even if they later decide not to serve. However, the worst thing that can happen is a surprise call from a hospital seeking an urgent medical decision from a person who is learning for the first time that your life may be in their hands.
Of course, I have only scratched the surface of these issues here. Please feel free to contact me by phone at 240-778-2330 or 703-536-0220 if you need more specific guidance on any of these topics.
(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)
Larry Jacobs has helped more than 500 same-sex couples and many LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 42 years. He is admitted to the bar in Maryland, Virginia and D.C. You can learn more about his practice at www.PartnerPlanning.com.