Most Estate Planning attorneys will tell you that planning ahead is the most important thing you can do to ensure you and your family are protected. I agree, but what does it mean to plan ahead? The most obvious answer is: planning ahead means anticipating future contingencies and having your affairs in place to navigate them accordingly. But what is implicit in this answer, and what people tend to overlook, is that planning ahead requires communication.
I cannot stress enough the importance of talking through these issues. This is especially true when your estate plan depends on others for your protection. Much of estate planning involves appointing another as a fiduciary to safeguard your assets and wellbeing. Effective and deliberate communication between principle and fiduciary is paramount to the efficacy of the plan.
Let’s say, for example, that you become incompetent and are solely reliant on your attorney in fact to make legal and financial decisions. If you never talk to them about your wishes, goals, or plans, how will they know how to act on your behalf? Without clear direction, the fiduciary’s actions may be open to ridicule from family members or others, which can make them unable to act when necessary.
Just as concerning, is the possibility for abuse of power. I would like to think that people won’t go out and get general estate planning documents that aren’t tailored to them specifically. However, this is not the case. There are many ways to acquire a quick and dirty estate plan. As you’d imagine, these documents tend to not be specific. And while there is no substitute for a solid and personalized estate plan, much of the ambiguity associated with general planning can be mitigated through clear communication. Although, that still does not ensure that your attorney in fact, trustee, or executor (fiduciary) will actually carryout your wishes.
What’s the solution?
Communication means two things: 1) clarity and specificity in the documents themselves; and 2) discussion of your intentions. Thus, the solution is to create a personalized estate plan with very specific terms. Thereafter, explain to the fiduciary the motivation and goals (your intent) involved in creating your plan. Explaining your intent gives the fiduciary a clear idea of what their role is. Including specific terms gives the fiduciary a framework in which to operate to fulfill your goals. The idea is, you want to have a hand on the wheel no matter what happens to you.
Do not fall for the false security of a generalized (quick and dirty) estate plan. Make sure that you speak with your attorney and understand the ins and outs of the plan you’re creating. Also make sure that you explain that plan to the people you trust to carry it out.
If you have any questions about your estate plan, don’t hesitate to give McIntyre Elder Law a call at 704-259-7040.
Brenton S. Begley
Elder Law Attorney