Monday January 30, 2023
Planning with a Serious Illness
If at some point in life you have a serious illness, there are a number of planning options that should be considered.
With a serious illness, there are emotional, physical and mental challenges. The illness may be primarily physical, but the person will eventually start to suffer discouragement and even depression. His or her mental capabilities may also start to fail due to deterioration of the body.
Given these serious issues, it is important to consider the care of the person, care of his or her property, financial decisions, potential actions and securing assistance from advisors and family.
Care of the Person
There are several areas that are important in thinking through care of the person. You should check to make sure you have a current durable power of attorney for healthcare or advance directive. This document needs to be shared with the person who is designated as your healthcare proxy. A serious illness could lead to your hospitalization and a need for the healthcare proxy to make important medical decisions.
There also are potential physical changes for a home or a vehicle. If you have an illness but can operate a motorized wheelchair, it may be appropriate to modify or remodel your home to make it handicap accessible. Similarly, you may suffer from a major illness but are still capable of driving. However, it may be necessary to obtain or modify a vehicle so that you can still drive.
A primary concern for the ill person is, "Who will be my caregiver?" Initially, the seriously ill person may stay at home and a family member may be caregiver. However, he or she should have a plan in place in case it becomes necessary to move to assisted living, a nursing home or even a hospital.
Care of Your Property
If you have a serious illness, it will be important to have either a person who has a power of attorney to manage your property or a revocable living trust. With a revocable living trust, your property is transferred by deed or other document to the trustee. While you may be the initial trustee, your trust also lists a successor trustee to take over if you are no longer able to manage property. With a serious illness, you may wish to resign and have the successor trustee take over while you still have the ability to offer advice and counsel.
If you have a home with valuable art or other valuable collections, it will be important to prepare for management of your property. At any time in the future, you may need to move to nursing care or the hospital. Valuable property will need to be protected and preserved for your estate beneficiaries.
With a serious illness, it is a good time to review your will and all trusts. If you have a trust, you should make certain that the title and ownership of property is correct. The trust is effective only if property is legally transferred to the trustee. Similarly, some individuals hold property as joint tenants with right of survivorship with other family members. If this is the case and you pass away, the surviving family member will own the property outright. If that is your intention, this method is fine. However, you should check all titles to make sure that they are correct for the plan that you have created.
You may have bank accounts, securities accounts and other business accounts. Check to be certain that all of the accounts are listed on your financial records. If you have online access to the accounts, a trusted advisor should know all of the passwords. If you are in the hospital or nursing home, your advisor will need access to your accounts.
You may have a current pattern of gifts to family or gifts to charity. If you wish to have your successor trustee or the person holding your power of attorney continue that gifting pattern, there will need to be a specific direction in your living trust or power of attorney to achieve that result.
In some states, there could be very significant income and estate taxes. Even though you have a serious illness, it may be worth considering changing your domicile to a state with a lower tax structure. This will require that you establish a new residence, change your driver's license and auto registration, file your income taxes and show that you are a permanent resident of the new state.
Advisors and Family
Particularly if you have a substantial estate and are quite ill, it is important to make sure that you have reliable and trustworthy advisors. Far too many elders who have substantial assets become weak and are victims of elder abuse. A group of trusted advisors and family members will protect you and your property.
Your advisors will discuss your vehicle use. There are several cases where seniors felt able to drive vehicles, but were progressively less capable. One individual in her 80s drove regularly to visit her daughter just one mile away. However, one day she made a wrong turn and became disoriented. A day and a half later, the highway patrol discovered the car idling at the side of the road several hundred miles away. Fortunately, she did not become lost during the winter or she very easily could have frozen to death before being discovered.
Advisors and family members will need to discuss with the seriously ill person the arrangements for transportation and the possibility of higher levels of care. This could mean moving from home into an assisted living facility or nursing home. These discussions are best undertaken while the seriously ill person is still able to think clearly and make good decisions.
Planning with a serious illness is a challenging process. Yet it is much better for the person and for the protection of the estate that the process is entered into openly and willingly by the individual and his or her advisors and family.
Published August 12, 2022