The Number One Estate Planning Mistake

September 30, 2013

last-will-testament-150x150One of the more popular speeches that I give is the Top 12 Estate Planning Mistakes: How to Detect and Avoid Them.

The top legal mistake I have observed is failing to address healthcare decisions.  This mistake is actually failure to address healthcare decisions before the need arises.

I recall when a prospective client came into my office and said, “My neighbor is in the hospital unconscious.  We have lived next door to each other for 30 years and we are best friends.  I went to the hospital, and the doctors won’t tell me what is happening with her.  Her ‘no-good’ son who she hasn’t seen in over 15 years…is who the doctors are allowing to make decisions for her.  Is there a way for us to go to court and get me the right to make her medical decisions for her, because I know that is what she would want?”

Unfortunately, my answer had to be that there was nothing we could do now, because her neighbor didn’t have the proper documents in place.  Without those documents, such as a living will and last will and testament, immediate family members are the ones who are allowed to make those decisions.  Prior to becoming incapacitated, the neighbor could have signed documents allowing her friend to make medical decisions for her.  In addition, if she didn’t want her son to make decisions, she could have signed documents indicating that in no event would that son have the ability to make decisions for her.

Why is this such a common mistake?  Because we are living longer. 85% of deaths now occur in hospitals and nursing homes.  Since we are living longer, our odds of not being able to make decisions for ourselves at some point are very high.  Also, because we are living longer, there are longer periods of time where patients lack decision-making capacity.

The problems created by not have healthcare documents in place include:

  • You may remember the legal problem in Terri Schiavo’s situation.  She was the Florida resident who was on life support, and her parents and husband were arguing about whether or not she should be kept alive on that support.  Terri could have had documents in place specify whether she wanted life support and in what circumstances.
  • Another problem with not having the correct documents in place is the guilt the family faces if life support is withdrawn.  It is much easier on the family if they know your wishes and can say “Mom said she didn’t want to be kept alive by machines in this type of situation.”
  • Another problem is no decision maker.  If there is no documents in place, then there may be more than one person under the law who has a right to make the decision.  If they don’t agree, then that can create conflict.
  • Not having the documents in place can cause delays in making decisions
  • Resolutions can be very expensive if the decision makers decide to argue in court.

Quick estate planning legal advice to avoid that top mistake: put the right documents in place, and make your wishes known in writing. In our firm, we provide our clients with a Health Emergency Card that gives doctors and hospitals access to the healthcare documents, so they know who has been appointed to make decisions and how to get in touch with each of them.