If you are a newlywed or are about to tie the knot, add “estate planning” to your to-do list. And yes, we imagine that at this happiest time of your life, planning for your potential incapacity and eventual death is probably the farthest thing from your mind, but getting it handled as part of your wedding planning is the greatest gift you can give your soon-to-be spouse.
First, be aware of the impact of doing nothing. If you were to become hospitalized for any reason prior to your wedding day, the person you love most in the world would not have the legal authority to make your medical decisions and may not even have the authority to see you in the hospital. Your beloved would have no access to your bank accounts and could even be put into a position of having to move out of your shared home abruptly in the event of your death.
Indeed, once your marriage is official, your relationship becomes entirely different from both a legal and financial perspective. With this in mind, in part one, we discussed the first three of six essential items you need to address in your plan, and here we cover the final three.
4. Durable Financial Power of Attorney
As we discussed in part one, estate planning is not just about planning for what happens when you die. It is equally important—if not even more so—to plan for your potential incapacity due to a serious accident or illness.
If you become incapacitated and have not legally named someone to handle your financial and legal interests, your spouse would have to petition the court to be appointed as your guardian or conservator to handle your affairs. Though your spouse would typically be given priority, this is not always the case, and the court could choose someone else.
And the person the court appoints could be a family member you would never want having control over your life, or it could even be a crooked professional guardian, who would charge exorbitant fees, keep you isolated from your family, and sell off your assets for their own benefit. In any case, if you have not chosen someone to make your financial and legal decisions in the event of your incapacity, the court will choose for you.
To ensure your spouse has the ability to make these decisions, you should create a power of attorney document to give him or her this legal authority. You actually need two of these documents, and the first one is a durable financial power of attorney. A durable financial power of attorney would grant your spouse the immediate authority to manage your financial, legal, and business affairs in the event of your incapacity. With a durable financial power of attorney, your spouse would have a broad range of powers to handle things like paying your bills and taxes, running your business, collecting government benefits, and selling your home, as well as managing your banking and investment accounts. A durable financial power of attorney is especially important if you live together before you get married because, without it, the person named by the court could legally force your soon-to-be spouse out with little to no notice, leaving your beloved homeless.
The second document you will need is a medical power of attorney, which we will discuss next.
5. Medical Power of Attorney and Living Will
In addition to the durable financial power of attorney, you will also need to create a medical power of attorney. A medical power of attorney is an advance healthcare directive that would give your spouse (or someone else) the immediate legal authority to make decisions about your healthcare and medical treatment should you become incapacitated and unable to make those decisions for yourself.
For example, a medical power of attorney would allow your spouse to make decisions about your medical treatment if you are in a serious car accident or hospitalized with a debilitating illness. Without a medical power of attorney in place, your spouse would have to petition the court to become your legal guardian. Even though your spouse is generally the court’s first choice for guardian, you should spare your spouse the time, money, and trauma involved with the guardianship process by creating a medical power of attorney and naming him or her as your agent.
While a medical power of attorney allows your spouse to make healthcare decisions on your behalf during your incapacity, a living will is an advance directive that explains how you would want your medical care handled, particularly at the end of life. A medical power of attorney and a living will work closely together, and for this reason, they are sometimes combined into a single document as it is here in Hawaii. Within the terms of your living will, you can spell out things, such as if and when you would want life support removed should you ever require it, whether you would want hydration and nutrition supplied, and even what kind of food you want and who can visit you in the hospital.
One tragic example of just how nightmarish things can become in the event you are incapacitated without advance directives in place is the case of Florida’s Terry Schiavo, who spent 15 years in a vegetative state after suffering a heart attack at age 26. Because she had neither a medical power of attorney nor a living will Schiavo’s young husband fought her parents in court for years for permission to remove her from life support, and the resulting litigation made news headlines around the world and exposed a deep divide among Americans over the right-to-die movement.
6. Name Legal Guardians For Your Minor Children
If either you or your spouse has minor children from a prior relationship, or if you are planning to have kids of your own soon, it is imperative that you select and legally document long-term guardians for your children. Guardians are people legally named to care for your children in the event something should happen to you and your spouse. And do not assume that just because you have named godparents or have grandparents living nearby that is enough. You must name guardians in a legal document, or you risk creating needless conflict and a long, expensive court process for your loved ones.
When working with us, naming legal guardians for your kids could not be any easier or more convenient. Indeed, creating the legal documents that will ensure your children will be raised to adulthood by the people you trust most and are never placed in the care of strangers (even temporarily) is one of our specialties. And we accomplish this using our comprehensive system called the Kids Protection Plan. The Kids Protection Plan provides you with all of the legal planning tools needed to make sure there is never a question about who will take care of your kids if you and your spouse are in an accident or suffer some other life-threatening emergency. Even if you have already named guardians for your kids in your will, either on your own or with the help of a lawyer, we often find that these plans contain at least one of six common mistakes that can leave your kids at risk. This happens because most lawyers are not trained to understand exactly what is necessary for planning and ensuring the well-being and care of minor children.
Best of all, we have created an easy-to-use (and 100% free) website you can visit right now to take the first steps to create legal documents naming the long-term guardians you would want to care for your children if you could not. Do it here now: www.protectmykeiki.com.
From there, you can schedule a Family Wealth Planning Session with us where we will put the full Kids Protection Plan in place, and determine if there is anything else you might need to ensure the well-being and care of your children no matter what happens.
Do not wait to take care of this urgent matter. In fact, if you have minor children, your number-one planning priority should be naming legal guardians to care for your children should anything happen to you. And if you need any help with this process, reach out to us.
A Trusted Advisor For Your New Family
Getting married is an exciting first step for your new family, and you should start things off right by getting your estate plan properly prepared. But here is the thing about estate planning—it is not just about creating a set of documents and then filing them away in a drawer and never looking at them again until something happens. Like your family, your planning needs are constantly evolving, so you must ensure your plan is regularly updated as your assets, family situation, and the law change. If you do not keep your plan updated, it will be totally worthless when your family needs it. In fact, failing to regularly update your plan can create problems that leave your family worse off than if you had never created a plan at all.
We have built-in systems and processes to ensure your plan is regularly reviewed and updated, so you do not need to worry about whether you have overlooked it. What’s more, our planning services go far beyond simply creating documents and then never seeing you again.
Indeed, we will develop a relationship with you and your family. This is so we can get to know you, your wishes, and be there for you throughout the many stages of life—and above all, be there for your loved ones if and when you cannot be. Contact us today to get things started with a planning session.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a strategic planning session, during which you will get more financially organized than you have ever been before and make all the best choices for the people you love. You can begin by contacting our office today to schedule a planning session and mention this article to find out how to get this $750 session at no charge.
Disclaimer: All information on this website is for informational purposes only and is not legal advice. You should contact an attorney trained to work with families on estate planning matters regarding your specific situation. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between the Law Office of Keoni Souza, LLC, and any users or any other party.