Introduction

An obvious fact of life, particularly for those of us who are “baby boomers,” is the possibility of a longer life. Also inherent in that expectancy is that those years may or may not include quality of life and the ability to have a voice in our own future.

We are becoming increasingly aware that some of us will suffer from late life dementia. The causes of dementia vary from injury to stroke to Alzheimer disease. Regardless of the cause, the result could be diminish capacity to make our own decisions for our own best interests. Before that time comes, we need to follow some simple estate planning techniques to assure that we have protected our maximum freedom of choice and discretion.

Initial Discussion with Family Members

First and foremost, have discussions with your family and friends about what you would like to happen if you cannot make decisions for yourself. If you haven’t expressed what you want, no one can help you achieve what you want. These are difficult discussions for everyone.

The topics that should be discussed include, but are not limited to:

• Who should make health care decisions for you? Remember, that it is not always easy for a family member to make the tough decisions regarding your health.
  
  
• What are your wishes regarding treatment and end of life decisions? Resuscitate, or Do Not Resuscitate? Full Code or No Code? Duration and intensity of treatment?
  
  
• Who should handle financial matters? What is the scope and duration of the authority granted? Under what circumstances does the power of attorney take effect?
  
  
• Who will serve as fiduciaries in your will? Be sure to name alternates.
  
  
• Are there other methods of disposing of your estate and caring for loved ones? Insurance, pay on death accounts, gifts and other non-probate transfers are often used. Remember the contents of your will represent your decisions alone, and not a consensus family decision nor to be demanded by someone else.

The very discussion of these subjects acknowledges our mortality. For many of us, however, it may be the only opportunity to confront these subjects in a meaningful way and have some assurance that our wishes will be followed. After these discussions, it is important to memorialize them is some fashion.

Prepare a Will

Always, it is prudent to prepare a will.

A will is a document that sets forth your wishes and desires upon your death. It is a formal document with certain legal requirements for preparation and execution to avoid fraud. These formalities include the proper attestation, witnesses and notary. The requirements are followed to assure that this document is, in fact, prepared at your request and represent your wishes. Do not attempt to draft a will on your own, and do not rely on one of the pre-printed forms as they may not conform to Colorado law.

The will may be as simple or as complex as you wish, depending on your needs. It may even contain a testamentary trust for the benefit of others upon your death. In a will you are able to make gifts to individuals, divide your estate as you choose, name the personal representative of your estate, nominate a guardian for dependents and elect how your estate is to be probated, if at all.

Living Trust

Some people recommend the use of a living trust in lieu of a will. Rarely do I find there is a good reason to create a living trust simply to avoid probate. Probate is too simple, relatively quick and inexpensive to warrant the cumbersome living trust.

Powers of Attorney

More importantly, for this discussion, are the creation of powers of attorney.

Powers of attorney can be specific or general in scope, duration and subject matter. For estate planning purposes I recommend the creation of a general power of attorney naming a trusted friend or family member to handle financial affairs in the event of incapacity. If adversity occurs, someone has to manage financial affairs. Limitations can be drafted into the power of attorney outlining what kinds of transactions and even the conditions under which the power of attorney becomes effective.

Likewise and perhaps more important is the drafting of a medical durable power of attorney. In this document you can outline the wishes hopefully expressed in the discussions with your family or friends. It is vital that your wishes are reduced to writing, but most important is the ability to name someone to carry out those wishes. In the past, we have relied on living wills. Living wills are a good and fundamental way of expressing your wishes; however, they do not carry the force of direction and compliance. We have then found that living wills, because they do not name a person to enforce the provisions, often go ignored. Expressions set forth in a medical durable power of attorney naming a trusted friend or loved one to enforce those wishes are the surest and most reliable way to assure compliance.

Guardianships and Conservatorships

Absent these simple and effective estate planning procedures, we can and often do rely on the courts to create simple guardianships and conservatorships. These are for persons who are unable to act in their own best interests. Through a modest probate procedure, the court, upon application and according to medical standards, can name an interested person or persons to handle matters concerning finances, healthcare and placement. Only in extreme instances will the court inquire into end of life decisions. While this is a relatively speedy remedy which can provide for emergencies and is very conscious of personal liberties, it is rarely a substitute for the expressed wishes of the individual.

In Closing

While it is difficult to confront the issues, simple, early estate planning is the best way to assure compliance with your wishes and relieve the burden on loved ones.

For most people, these simple documents I have discussed can form a complete and adequate estate plan. For others with unique issues or if their estate is larger in net worth, more complex planning may be required to meet your needs or deal with various tax considerations.

If this short discussion prompts questions or discussion, please feel free to call me.

(719) 636-1576

Email - JNTlawyer@qwest.net

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