As an example, consider the following. We recently represented clients who are the parents of a young single man in his 40s who suffered brain damage. We’ll call him Ben. Ben is in a persistent vegetative state, and has no Power of Attorney or Advance Medical Directive documents. As such we have filed a guardianship action on behalf of Ben’s parents so that they can make medical decisions and take financial action on his behalf.
Ben’s parents happen to disagree with Ben’s adult son (who has mental health issues of his own) about whether to continue life-sustaining treatment. As noted above, New Jersey has no priority-of-right statute regarding making medical decisions for a loved one. Additionally, while Ben’s parents wait for a guardianship order to be entered, they are not informed of their son’s condition by the medical facility.
The guardianship will also help ensure that Ben’s finances are handled properly. Still, a power of attorney would have been more efficient. While Ben’s parents await the Court’s order, their hands are tied and they can do nothing to force his freeloading girlfriend to move out of the home they shared, and that she never helped pay for, and which now must be sold. Sure, we can write letters threatening legal action, but until Ben’s parents become guardians for their son, those letters have little enforcement value.
Power of Attorneys and Advance Medical Directive documents are also essential for young adults leaving home and headed to college. While a Will might not be at the top an 18-year-old’s “Get Ready for School” list, Power of Attorney and Advance Medical Directive documents should be.
These documents will provide parents peace of mind that if something unfortunate happens to their child, they will have the legal authority to act on their child’s behalf. Without the Power of Attorney and Advance Medical Directive documents, it is very unlikely that any hospital, school administrator, or bank will speak with a parent about their child’s medical and financial well-being. Of course, there might be some concern on the part of the 18-year-old that the parent will misuse this tool (e.g. calling college administrators for academic information without permission of the child), but that can be worked out – within the document itself or simply by agreement between parent and child.
Purchasing any of these documents online are discouraged, at all cost. While the online documents may state they are “simple”, it does not mean that they comport with state law, or some big national bank’s mysterious checklist of requirements. Proper drafting AND execution are essential and can vary from state to state. Online DIY documents are not state specific and all too often do not comply with any state’s specific estate planning laws. Don’t fall for the temptation of “penny wise, pound foolish.”
In short, the repeal of the New Jersey estate tax is not the end of estate planning – preparation remains essential for all ages and demographics. Estate planning in the future will be less about the numbers and more about the soft touch. It is also more likely about volume and less about complexity. The needs may be more simple (although they rarely are, in reality), but they are still needs.
Contact me directly with any questions and/or additional information. Don’t play RISK with your or your loved one’s life.