2025-01-13 by Sue Hunt
It might be a stretch to say that if you have your health, you have everything. However, to some people, decisions about their health are arguably more personal in nature and more important to their overall well-being than financial decisions.
This leads to the question of who will step in and make healthcare decisions for you if you are incapacitated (unable to make or communicate your medical wishes). You may have estate planning documents that allow someone else to manage your finances during a period of incapacity. But have you also appointed someone to step in and manage your medical care when you cannot make decisions or communicate your preferences on your own?
Without certain documents that allow you to control your future medical treatment in the event that you become incapacitated, you could be at the mercy of the courts or medical professionals who are bound by facility policies and procedures and end up receiving care that is different from what you would have wanted.
Medical Directives and Estate Planning
Maybe you have created a will that names your beneficiaries or set up a trust to hold your money and property for your loved ones. You have even thought of the little things, like property appraisals, life insurance, digital assets, and pet provisions.
Your loved ones will be well taken care of when you are gone. But a comprehensive estate plan is about more than that. It also involves ensuring that your loved ones can take care of your medical decision-making as you would like them to while you are still alive but incapacitated. This aspect of your estate plan is addressed with documents known as medical directives.
Medical directives are a series of legal documents that name a medical decision-maker and describe how your medical care should be handled if an injury or illness prevents you from making decisions or expressing your wishes. This could happen, for example, if you are under anesthesia, suffer from dementia, or experience a medical emergency.
Two medical directives crucial for every estate plan are a health care power of attorney and a living will.
A health care power of attorney and living will should be written to complement each other. It is important to understand the interplay between these two documents. In some situations, the power of the agent under a health care power of attorney may be limited by any instructions the principal outlines in their living will, and the agent may be unable to make decisions that contradict those instructions. A health care power of attorney may contain healthcare instructions as well.
A living will should clearly state someone's preferences for a number of end-of-life care decisions that include CPR, ventilation, dialysis, medications, tube feeding, pain management, and organ donation.
If these decisions are not addressed in the documents or the directives are unclear, the agent can use their judgment to decide what they think is in the principal's best interests and aligns with their values.
Most people choose an agent under a health care power of attorney who knows them well and understands their values and preferences, but you should discuss intervention and treatment choices with your trusted decision-maker(s) before their services are needed. Choosing someone who will be available in case of an emergency is also important.
What Can Happen When There Are No Medical Directives
Your health care power of attorney allows you to choose a person or people to make decisions for you if you cannot make them yourself. In other words, you are preauthorizing a stand-in to provide informed consent on your behalf in the future when the need arises.
Without a valid health care power of attorney, the alternative—appointment of a court-ordered guardian for someone lacking capacity—can be very problematic.
When choosing a guardian or conservator (the term may vary by state) for an incapacitated adult who lacks a substitute decision-maker, the court considers a combination of the individuals set forth under state law and the person's best interests, prioritizing close family members such as a spouse, parent, or adult child. Once the patient is deemed incapacitated,the guardian or conservator has full authority to make most or all decisions for the patient unless the patient retains the capacity to make decisions.
While guardianship might seem like a reasonable solution to the issue of not having medical directives, it is often too slow and cumbersome to respond proactively to a patient's immediate medical needs. Also, guardianship proceedings are usually expensive: there will be court fees and potentially attorney's fees if one is used (most states require that an attorney represent the guardian or conservator throughout the case). Further, another drawback of guardianship proceedings is the lack of privacy. Since these proceedings take place in court, much of the information shared becomes part of the public record.
The bottom line is that relying on the appointment of a court-appointed guardian or conservator is often considered by medical professionals and attorneys to be a last-resort option.
Take Control of Your Medical Future
When you do not have a health care power of attorney and a living will, someone else will still need to make decisions about your healthcare. But who that person is—and what they decide—may not accurately reflect your wishes.
Naming a stand-in decision-maker and stating your treatment preferences gives you some control over medical circumstances that may otherwise be outside of your control. If you have not yet named a medical agent or are having trouble identifying someone who is available, willing, and able to serve in this role, an attorney can help. To take control of your medical future today, reach out to us at 336-373-9877 to schedule an appointment.
2025-01-13 by Sue Hunt
Although we may not always recognize it, financial decisions and tasks are a part of our everyday lives. They range from daily spending habits to more complex retirement planning.
You may take for granted that you are able to manage your finances. However, what if you become incapacitated (meaning that you lack the ability to handle your own affairs due to illness, injury, cognitive decline, or some other cause)? Someone else will have to manage your finances for you if you cannot.
If you have an updated estate plan that names a substitute decision-maker to act in your stead, you have control over who that someone is. Otherwise, the court will appoint a financial decision-maker, and it may not be who you would want—or who has your best interests in mind.
Guardianship or Conservatorship versus an Estate Plan
Two-thirds of US adults do not have an estate plan,[1] which effectively means that they lack an incapacity plan (a plan for how their affairs will be managed if they cannot do it for themselves).
You may have created a will and completed other estate planning tasks, such as purchasing life insurance and making beneficiary designations. However, you still need a documented, legally enforceable process and plan for determining who will manage your affairs if you become incapacitated.
To proactively grant the necessary powers to a financial decision-maker, consider a revocable living trust and a financial power of attorney.
One of the main purposes and benefits of a revocable living trust is to avoid the court-supervised probate process, but it can also be used to help avoid a different form of court intervention: the appointment of a legal guardian or conservator (the term may vary by state), which is the person appointed by the court to make financial and other decisions for you.
A financial power of attorney is highly flexible. It can include a statement describing how incapacity will be determined and who determines it; it can come into effect only when the principal's incapacitation is confirmed (in some states); it can specify the powers granted to the agent; and it can be limited or long-lasting in duration. Like a revocable living trust, a financial power of attorney helps eliminate the need for court-appointed guardianship or conservatorship.
Factors When Choosing a Financial Decision-Maker
When choosing a financial decision-maker, you should consider factors such as trustworthiness, financial knowledge, and the ability to handle responsibilities under pressure. The person selected should have a strong understanding of your values and priorities, be organized, and communicate effectively with other key parties, such as family members or advisors. Additionally, they should be available and willing to serve in this role, as it may require significant time and effort, particularly during complex situations.
If nobody in your immediate circle of friends and family seems like a good candidate, a professional, such as an attorney or financial advisor, can be chosen. However, many professionals are hesitant about serving in the role of an agent under a durable power of attorney, so you may want to consider other professionals, such as professional caregivers or fiduciaries. A professional trustee or agent is different from a professional guardian or conservator because it is a person of your choosing rather than the court's.
The bottom line is that estate planning lets you manage incapacity in advance, in the manner that is best for you, your finances, and your family. You are free to name whomever you want to serve as a successor trustee or an agent under your financial power of attorney and to provide whatever instructions you want for them in your estate plan.
You may never need to rely on an incapacity plan. However, having the right people and provisions in place gives you added protection and peace of mind just in case something happens and you lose financial capacity. For guidance on this front, call us today at 336-373-9877 to set up an appointment.
[1] Rachel Lustbader, 2024 Wills and Estate Planning Study, Caring.com (July 30, 2024), https://www.caring.com/caregivers/estate-planning/wills-survey.
2024-04-08 by Sue Hunt
As a parent, you are responsible for the care of your minor child. In most circumstances, this means getting them up for school, making sure they are fed, and providing for other basic needs. However, what would happen if you and your child's other parent were unable to care for them?
It is important to note that if something were to happen to you, your child's other parent is most likely going to have full authority and custody of your child, unless there is some other reason why they would not have this authority. So in most cases, estate planning is going to help develop a plan for protecting your child in the event that neither parent is able to care for them.
What If You Die?
When it comes to planning for the unexpected, many parents are familiar with the concept of naming a guardian to take care of their minor children in the event both parents die. This is an important step toward ensuring that your child's future is secure.
Without an Estate Plan
If you and your child's other parent die without officially nominating a guardian to care for your child, a judge will have to make a guardianship decision. The judge will refer to state law, which will provide a list of people in order of priority who can be named as the child's guardian—usually family members. The judge will then have a short period of time to gather information and determine who will be entrusted to raise your child. Due to the time constraints and limited information, it is impossible for the judge to understand all of the nuances of your family circumstances. However, the judge will have to choose someone based on their best judgment. In the end, the judge may end up choosing someone you would never have wanted to raise your child to act as your child's guardian until they are 18 years old.
With an Estate Plan
By proactively planning, you can take back control and nominate the person you want to raise your child in the event you and the child's other parent are unable to care for them. Although you are only able to make a nomination, your choice can hold a great deal of weight when the judge has to decide on an appropriate guardian. The most common place for parents to make this nomination is in their last will and testament. This document becomes effective at your death and also explains your wishes about what will happen to your accounts and property. Depending on your state law, there may be another way to nominate a guardian. Some states recognize a separate document in which you can nominate a guardian, and that document is then referenced in your will. Some people prefer this approach because it is easier to change the separate document as opposed to changing your will if you want to choose a different guardian or backup guardians.
What If You Are Alive but Cannot Manage Your Own Affairs?
Although most of the emphasis is on naming a guardian for when both parents are dead, there may be instances in which you need someone to have the authority to make decisions for your child while you are alive but unable to make them yourself.
Without an Estate Plan
Not having an incapacity plan in place that includes guardianship nominations means that a judge will have to make this judgment call on their own with no input from you (similar to the determination of a guardian if you die without a plan in place).
With an Estate Plan
A comprehensive estate plan can also include a nomination of a guardian in the event you and the child's other parent are incapacitated (unable to manage your own affairs). Although you are technically alive, if you cannot manage your own affairs, there is no way that you will be able to care for your minor child. This is another reason why having a separate document for nominating a guardian (as described above) may be preferable to nominating guardians directly in a last will and testament. Because a last will and testament is only effective at your death, a nomination for a guardian in your will may not be effective when you are still living. However, a nomination in a separate document that anticipates the possibility that you may be alive and unable to care for your child can provide great assistance to the judge when evaluating a guardian. Depending on the nature of your incapacity, this guardian may only be needed temporarily, with you assuming full responsibility for your child upon regaining the ability to make decisions for yourself.
What If You Are Just Out of Town?
Sometimes, you travel without your child and will have to leave them in the care of someone temporarily. While you of course hope that nothing will go wrong while you are away, it is better to be safe than sorry.
Without an Estate Plan
Without the proper documentation, there may be delays in caring for your child if your child were to get hurt or need permission for a school event while you are out of town. The hospital or school may try to reach you by phone in order to get your permission to treat them or allow them to attend a school event. Depending on the nature of your trip, getting a hold of you may not be easy (e.g., if you are on a cruise ship with little access to phone or email). Ultimately, your child will likely be treated medically, but the chosen caregiver may encounter additional roadblocks trying to obtain medical services for your child, and they may not be able to make critical medical decisions when needed.
With an Estate Plan
Most states recognize a document that allows you to delegate your authority to make decisions on behalf of your child to another person during your lifetime. You still maintain the ability to make decisions for your child, but you empower another person to have this authority in the event you are out of town or cannot get to the hospital immediately. This document allows your chosen caregiver to make most decisions on behalf of your child, except for consenting to the adoption or marriage of your child. The name of this document will vary depending on your state and is usually effective for six months to a year, subject to state law. Because this document is only effective for a certain period of time, it is important that you touch base with us to have new documents prepared so that your child is always protected.
We Are Here to Protect You and Your Children
Being a parent is a full-time job. We want to make sure that regardless of what life throws at you, you and your child are cared for. Give us a call to learn more about how we can ensure that the right people are making decisions for your child when you cannot.
2024-04-04 by Sue Hunt
Probate is the court-supervised process of either (a) carrying out the instructions laid out in the deceased's will or (b) applying state law to distribute a deceased's accounts and property to their family members if the deceased did not have a will. The main purpose of the probate process is to distribute the deceased's money and property in accordance with the will or state law. Not all wills, and not all accounts and property, need to go through probate court. And just because a will is filed with the probate court does not mean a probate needs to be opened. But whether or not probate is necessary, most state laws require that a will be filed when the creator of the will (testator) passes away.
Estates, wills, and probate are distinct, yet interrelated, estate planning concepts.
Assuming that a decedent does have a will, here is how probate typically proceeds:
The length of a probate can vary depending on many factors, including the size of the estate, state laws, and whether the will is deemed invalid or contested.
In some cases, avoiding probate altogether can cut down on the amount of time it takes to wind up a deceased person's affairs. There are also other reasons to avoid probate, such as keeping probate filings out of the public record and saving money on court costs and filing fees.
Beneficiary designations, joint ownership, trusts, and affidavits are common ways to avoid probate, but only if they are done correctly. Here are some examples of these probate-avoidance tools in action:
Filing a will with the probate court and opening probate are separate actions. A will can be filed whether or not probate is needed. Remember that probate is needed only under certain circumstances, such as when the decedent passed away while owning probate assets. Further, not only can a will be filed with the court when a probate is not needed, some state laws actually require it. Some state laws require the person who has possession of a decedent's will to file it with the court within a reasonable time or a specified time after the date of the decedent's death. The consequences for failing to file a will vary by state but may include being held in contempt of court or payment of fines. Additionally, the person in possession of a will might also be subject to litigation by heirs who stand to benefit from the estate under the terms of the will. The latter also applies if the will-holder files a will but does not file for probate. Failing to file for probate (when probate is necessary) prevents inheritances from being properly distributed.
These legal consequences are usually imposed only on a will-holder who willfully refuses to file a will. If someone you love has passed away and you have their will in your possession, we recommend that you work with an experienced probate attorney who can assist you in determining whether a probate must be opened and whether the will needs to be filed.
Probate avoidance may be one of your goals when creating an estate plan. You should also consider implementing tools in your estate plan to minimize issues that may arise if your estate does require probate.
Your will may have been written years ago and might not reflect current circumstances. You could have acquired significant new accounts or property, experienced a birth or death in the family, left instructions that are vague or generic, or chosen an executor who is no longer fit to serve. An outdated or unclear will can spell trouble when it is time to probate your estate, making it important to identify—and address—issues that could lead to problems, including will contests and disputes.
It is recommended that you update and review your estate plan every three to five years or whenever there is a significant life change or a change in federal or state law. You cannot be too careful when stating your final wishes. For help drafting an airtight will that avoids possible complications, please contact us.
by Julia Walker
Backup Plans Are Loving Too: Why You Need Contingent Agents and Guardians
Progressive Insurance recently rolled out a series of commercials featuring “backup” quarterbacks stepping in to handle everyday challenges, such as ordering food, giving advice, and even parking a trailer. After the “backup” salvages the situation, each commercial ends with the same line: “If only there were backups in real life.”
The ads are designed to emphasize how a backup can provide peace of mind when the unexpected occurs, as it often does, in both football and life. Progressive frames the point simply: “It’s always a good idea to have a backup plan.”
The humor hinges on the premise’s absurdity. In most areas of life, a person cannot summon a backup to act on their behalf during a deeply personal moment and expect that substitute to seamlessly complete the task.
Estate planning represents a notable exception. Real-life backups are contingent decision-makers designated in advance to step in if a primary decision-maker cannot serve. These contingents function much like backup quarterbacks: prepared to act quickly, often under pressure, and sometimes when the stakes are high.
An estate plan that names only primary decision-makers may appear complete on paper. Without contingents, however, the plan lacks the depth needed to remain effective when circumstances change, much like a football team without a backup quarterback.
Backups Prevent Chaos
When a team has no backup quarterback, it risks losing its entire passing game the moment the starter goes down. In desperation, coaches may be forced to put a nonquarterback under center to keep the game moving, with predictably disastrous results.
After a high-profile game exposed this exact problem, the National Football League changed its rules,[1] adopting an “emergency quarterback” policy to ensure that, even in extreme circumstances, a team would not be left without an on-field quarterback.
The logic is structural rather than sentimental: the quarterback is a control point for the entire strategy, and the system quickly falls apart when no prepared backup exists to take over.
The same dynamic exists in estate planning. When a plan relies on a single decision-maker with no designated contingency, it creates a fragile structure—one illness, conflict, relocation, or instance of unavailability away from confusion, delay, or court involvement.
Contingents provide stabilization and strategic depth. They allow your estate plan to keep functioning even when life goes off script.
Fielding the Right Team in an Estate Plan
Backups are not expected to completely fill the starter’s shoes. If they could, they would be starting. However, they are expected to be part of the game plan so that, if they are needed, the drop-off is manageable and the system can continue to operate.
That is an excellent way to think about contingents in an estate plan. Their role is not perfection but continuity.
When backup decision-makers are not built in, all bets are off. Decisions stall. Authority becomes unclear. Courts or third parties may be forced to step in. And unlike football, where the fallout affects both players and fans, the real-world consequences land on family members, often during moments of stress, grief, or medical crisis.
Just as damaging as having no backup is having the wrong one. Naming someone who is unavailable, unprepared, or no longer appropriate can be the equivalent of signing a player off the street and hoping for the best. The position may be filled, but the drop-off is glaring, and the system will not function as intended.
Common Contingent Oversights and the Problems They Cause
Contingents, like backup quarterbacks, are best viewed as necessary additions to your decision-making team. Whether on the field or in real life, things rarely go exactly as planned. Not having the right backups in place can cause an otherwise well-drafted estate plan to quickly break down, sometimes at the worst possible moment.
Financial Power of Attorney
● Only one agent has been named, with no contingent agent.
● A contingent agent was named years ago and may no longer be an appropriate choice.
● Coagents are named without clear instructions on authority (for example, whether they must act jointly or may act independently, and how disagreements are to be resolved).
Result: Financial decisions stall, accounts freeze, and families may be forced to go to court.
Healthcare Agent
● Only one health care agent has been named, with no alternate.
● The named agent may be unavailable (out of state, difficult to reach, or unable to respond quickly during a medical event).
● The agent’s current views may no longer align with the client’s wishes (or the client’s wishes have evolved and have not been clearly communicated).
Result: Treatment decisions may be delayed, authority can become unclear, and family conflict often escalates during medical crises.
Executor or Personal Representative
● No alternate executor has been named.
● The named executor is unwilling or unable to serve.
● The named executor lacks capacity or lives far away, limiting availability for time-sensitive tasks.
Result: Probate is delayed, costs increase, and court involvement becomes more likely at a sensitive time.
Guardians for Minor Children
● A guardian has been named for one child but not for others.
● No backup guardian has been named.
● The named guardian’s circumstances have materially changed (health, location, family responsibilities, or financial stability).
Result: Courts must decide custody and identify backup choices without knowing the parents’ wishes.
Across all these roles, the pattern is the same. Change was unanticipated, and the plan failed as a result. Depth was never built into the system. Or if it was, it was the wrong kind of depth. The listed backup was not read into the game plan or in “playing shape.” They had not had sufficient practice to be game-ready.
Backups Are a Sign of Readiness
Nobody would accuse a team with a solid backup quarterback of being pessimistic or overly worrisome. Backups are standard procedure because the position carries high stakes, and the consequences of being unprepared are immediate.
Estate plans work the same way. Naming backups (successor trustees, alternate personal representatives, backup agents under powers of attorney, and contingent guardians) is not “expecting the worst.” It is smart redundancy: an added layer of protection that helps your plan hold up when life does not cooperate. And, just as with a team’s lineup order, those choices should be revisited and updated during regular plan reviews.
Teams do not hesitate to replace a backup when the fit is wrong for the system or the locker room, and you should not hesitate either. Sometimes the person you picked years ago has moved, become unavailable, changed in capacity, or is simply not the best match for what your family needs today.
In real life, just as in football, you sometimes need someone ready to step in when life does not go according to plan.
However you look at it, your backups are every bit as important as the starters in your estate plan and require a specific skill set—and preparation—to succeed when they are called.
Do you need to name backups or help choosing the right contingents? We are here to assist you in doing just that!
[1] NFL emergency third-quarterback rule: Questions and answers, NFL (Sept. 4, 2023), https://www.nfl.com/news/nfl-emergency-third-quarterback-rule-questions-and-answers.
