Question: I just completed my estate plan and will be seeing my children over the holidays. What can I tell them about the role they will play as my Health Care Proxy, Power of Attorney, Executor and/or Trustee
Answer: Congratulations on completing your estate plan! Now comes the fun part of sharing your wishes with your children. While it may not be the most festive of conversations, it is important that you discuss your plan with your children ahead of a crisis, so they are fully prepared for what role they will or will not play.
When you designate a child as an agent on your Health Care Proxy, you are designating the person who will make medical decisions for you if you are unable to do so. These decisions can include anything from routine care to surgical procedures to end of life decisions. As such, you should discuss what measures you would and would not want that agent to take. You should also discuss your medical history and what doctors you see on a regular visit. If you do want the agent to be able to make end of life decisions, be sure to have a Living Will. The Living Will is a statement of your wishes that you would not want to be kept alive artificially if you were in a vegetative state or an otherwise suffering from an incurable illness. This Living Will serves as the evidence that if your agent had to make that difficult decision, he or she is doing so at your direction and not using their own substituted judgment.
The agent under a Power of Attorney is the person who will make financial decisions for you. If your Power of Attorney is “springing” the agent will only be able to make financial decisions if the document is accompanied by an affidavit signed by your physician that you are unable to handle your finances. If your Power of Attorney is not springing, the agent you designate has the power to manage your finances as soon as you and they sign the document. While that may seem like an extreme a power to give, keep in mind that the “springing” Power of Attorney can be difficult to implement if a physician is unwilling to sign the capacity affidavit. Accordingly, you should choose the child, or loved one, who is trustworthy and good with money! When you discuss this document with your agent, be sure to tell them of any pledges you may want them to continue, what banks you utilize and any other pertinent financial information. You should also discuss how you would like your assets distributed at the time of your death. This is because your agent cannot move or gift assets in a way that is contrary to your testamentary intent.
If you incorporated a trust into your estate plan, you should discuss with your children who you have designated to be the Trustee and Successor Trustee. The Trustee is the person who manages the trust during your life and distributes the assets according to your wishes at your death. If you executed a revocable trust, you are most likely the Trustee during your lifetime. If you executed an irrevocable trust, you likely chose someone other than yourself.
Unlike a Last Will and Testament, Trusts do not have be filed in the Surrogate’s Court after your death. The Trustee will be able to marshal the assets and make distributions without having to complete a probate proceeding. While it’s important to tell your children who you have chosen as the Trustee, you should also discuss why you chose this child over another. It’s a difficult decision but it is better to be honest and open with your decisions rather than causing speculation and acrimony amongst the children after your death. Similar to the Power of Attorney, you should discuss what assets are in the trust or payable to the trust at your death, so the Trustee can be prepared for what assets they will be responsible to distribute.
Lastly, you should discuss your Will with your children, both who you have designated as the Executor and what the ultimate distribution will be. Wills have to be probated in order for the Executor to have the power to marshal your assets and make distributions. The probate process involves filing the original Will in Surrogate’s Court after your death and sending notice to all those people who would have inherited had you not written a Will. If any child is disinherited, keep in mind that they will be entitled to notice and have the opportunity to object to your Will before it is admitted to probate. Therefore, make sure you keep your original Will in a safe place and tell your Executor where you are keeping it.
And with all of these documents, if a child you designate expresses concern or unwillingness to serve, consider talking to them to understand their resistance or changing your documents to select someone who may be more willing, but still appropriate, to serve.