Just a Will's Not the Way

None of us ever imagines we won't be there to raise our children. Did you know that 69% of parents have not made provisions should the unthinkable happen. It's morbid. We're busy. We don't want to spend the money to set things up. We push away the thought because it’s too scary to contemplate our child being raised by anyone besides us.

As parents, we must take the time and invest the energy in setting things up for our family should we not be there. Without prior planning, we will leave our family in a legal mess. An expensive and complicated mess that is easily avoidable.

Doing the right thing by our family does not have to be as painful as we think it will be. If we educate ourselves about what is needed and how to get it taken care of, getting our personal affairs in order can even be enlightening. It certainly takes a weight of our shoulders. Alexis Martin Neely, a renowned Personal Family Lawyer, offers the following guidelines.

Kid Protection Plan

A KPP begins with naming legal guardians to raise your children if anything happens to you and their mothe/. A comprehensive KPP will also name local friends or family as guardians for the immediate/short-term care of your children so that the authorities never have to take your children out of your home and into the care of strangers. With a KPP in place, you'll carry an ID card in your wallet listing the names and addresses of your immediate/short-term guardians as well as provide written instructions to all of the people who care for your children, such as babysitters and schools. Finally, a KPP will confidentially exclude anyone you know you would never want to serve as guardian of your children to ensure there are no court-room battles over your child's care. It will also provide detailed instructions about things like health care, education, discipline and your values, so your children are raised the way you want, no matter what.

Financial Durable Power of Attorney

A financial durable power of attorney is something every adult needs, even if you don't have children at home. This document is what will let your family access your bank accounts, pay your bills, and make financial and legal decisions for you if you are hospitalized or otherwise incapacitated.

This story should bring home the importance of having a durable power of attorney in place:

Neely's law firm was contacted by a young woman after her father was hurt at his janitorial job, hospitalized and unable to communicate. This man thought he did not need estate planning because his income was very low and he had less than $10,000 in the bank.

Unfortunately though, his failure to plan left his family in a lurch. They needed the little bit of money he had in the bank but couldn't access it without going to Court because the account was in his name and he didn't have a durable power of attorney naming anyone to act for him legally.The cost of going to Court was going to cost their family more than the money that was in the bank!

Don't leave your family in this kind of a painful situation unable to access the limited resources you have because you didn't do what you need to do. Be sure you have a financial durable power of attorney in place and make sure it's comprehensive and will work when your family needs it.

Health Care Directive (Living Will)

A Health Care Directive (also known as a Living Will or Health Care Power of Attorney) is another document set that every adult needs, even if you don’t have children at home counting on you.

These set of documents do two important things:

1. Appoint the person you want to make health care decisions for you, if you cannot make them for yourself
   
2. Tell your appointed decision-maker how you want those decisions to be made.

Each state has its own rules for how these documents should be prepared. In some cases, your instructions can be all in one document and in others they need to be two separate documents. The most important thing is that you get something down in writing.

And, once again, make sure you have got something that will really work when your family needs it. Neely recommends giving broad discretion to someone you trust to make decisions about all of your health care decisions, including not only life-saving medical care, such as respiration, but continued nutrition and hydration in case you are incapacitated. If you recall the Terry Schiavo case from several years ago, in which her husband and her parents fought over whether she should be kept alive or not and the case was brought all the way to the Florida Supreme Court, the issue was not whether to continue to keep her lungs pumping, but whether to continue to provide nutrition and hydration - be sure your medical directive addresses these issues.

A Will

When it comes to estate planning, most people think of having a Will. Unfortunately, having a Will often provides a false sense of security. Neely admonishes that belief as a myth. In fact, did you know your Will is the least important of the 5 legal documents every parent must know about.

A Will sets forth what you want to happen to your assets at the time of your death. But, here's the thing, where there's a Will and your assets are owned in your name, the Will merely acts as instructions to the Court as to what to do with your assets.
That means your family is stuck dealing with the Court after you are gone. This is not a good thing.

The Court process for handling your assets after your death is called probate. It's typically expensive, time-consuming, and always totally public.A Will alone is really only appropriate for parents who have no (or very limited) assets titled in their name. If you have assets, such as a home, bank accounts, life insurance, and retirement accounts, you need to have a Living Trust to keep everything out of court, totally private and make it super easy for your loved ones.
You may have heard that if you only have life insurance and retirement accounts that you could simply name beneficiaries on those assets and avoid probate. That's true, but not going to work if you have minor children because they are too young to be the beneficiaries of your assets and would end up in Court with a guardian appointed to handle them. Not what you want.

Living Trust
If you have financial assets or real estate, you want to have a Living Trust. A Living Trust is the single best way to make things as easy as possible for the people you love, bar none. But, and it's a big BUT, most people who have a Living Trust in place have one that won't work when their family needs it.It’s the same for each of these documents Neely talked about; they are only going to work the way they were designed to work if the law stays the same and your life stays the same.

Neely reminds us-As your life changes, the documents need to change and as the law changes, the documents also need to change.

And, for your Living Trust, it won't work unless all of your assets are titled in the name of it, not just once, but every time you acquire an asset in the future. It is imperative that all documents are kept up to date!

Michael Jackson is a good example. He spent hundreds of thousands of dollars with his lawyers, had a trust-based estate plan that he was probably told would keep his family out of court. As we now know, it must have failed because his family has been dragged into court already multiple times since his death with everything open to the public.

These 5 documents are absolutely vital because they will make life as easy as possible for your family, keep your loved ones out of court and get them easy access to your assets in the midst of a crisis, but only if they are kept up to date and your assets are owned properly.

Most of us do not have the time, knowledge and discipline to do this for ourselves the right way. If you do, great. But, who is going to guide your family to make the right decisions and carry things out after you are gone? There's nothing more important to you than your family. They are why you do everything you do, right? So, for them, find a lawyer who will guide you right during your lifetime and be there for your loved ones when you can’t be. It's far easier for you to take care of things now, while you are living and able than it will be for them to take care of things after you are gone. Legal planning is not just about wise financial planning; it's about making life as easy as possible for the people we love....no matter what. chrissie