Some years ago I had a client who announced it is impossible to plan because “things keep changing.” Without missing a step I answered “because things keep changing we have to plan.” The answer was instinctual. That does not always mean everything has to be taken down on paper but many times it should be. It should be a stress reliever, though, to know you can change your mind and change your documents as things change. Otherwise you can be paralyzed by indecision.
First, there are life cycle changes. When children are young, you could wrestle with who should serve as guardian or trustee if you or you and your spouse die or are seriously injured. Your brother and his wife live at a distance. You think your inlaws might not raise your children your way. It is understandable you would be conflicted. You could need to make a decision anyway but know you can change your mind. The alternative is that a Court might wind up making the decision for you in the case of tragedy and it might not be the decision you want.
In mid-life you now have the income and the assets. The children might have jobs or be attending college. Will they be responsible? When are they ready? Should they inherit outright or should there be a trust that pays out over time and who should be the Trustee? Sometimes appointing another family member to be in charge can get awkward. Would you consider an institutional trustee or a bank trust department?
Your child may be disabled or become disabled. You may need either a support or a special needs trust.
As time moves on you might have a falling out or estrangement with one or more of your children. I often see parents and children reconciling later on but sometimes change can be permanent. Remember if you take someone out of your Will you can add him or her back in – or maybe not.
If you become sick, could your spouse handle everything? Or if your spouse becomes ill do you know enough about the finances to handle them alone. Where dementia becomes a problem the standard practice of naming your spouse as your executor or agent under a power of attorney might need to be reconsidered. Someone else, possibly a trusted child, might need to step in.
Where one of your children is acting as Power of Attorney will she or he know enough how to use money wisely or will they spend money foolishly, maybe recklessly. Will they know when to ask for help if they do not know what to do?
These are all choices and they can change. You can revoke powers of attorney or replace them with others. You can change your mind.
If you have only two children many parents agonize over who should serve or should both children serve together. While there are not many “rules” in deciding, one common factor is parents should not appoint two children who fail to get along hoping that working together will cause them to become closer. Results can be disastrous in some cases.
No one is the perfect agent under Financial Power of Attorney or Health Care Power. No one is the perfect Executor and there is no test to prove one way or another. This may mean the cure for indecision is indeed to decide but remember you can change your mind.
Decision making can be risky and sometimes frightening but this is the saving factor. You can always change your mind.
If the circumstances under which you appointed someone as Executor or Power of Attorney change, you can change the documents. Often I see decision makers almost paralyzed by the possibility they could make a mistake. I would advise almost everyone, actually everyone, makes mistakes. This is why there is the possibility of rewrite.
The documents you prepare are intended to protect and cradle you through the difficult periods of your life. They are not intended to limit you. If you look at it this way, decision making with estate documents should make it easier, not more stressful.
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.