My adult children were home for the Easter holiday and I took the time to have that important conversation with them about their estate plans. Wait? You are an estate planning attorney. Why haven't you had that conversation with them before? Haven't you said before that an adult child's estate plan is an important aspect of your overall estate planning function? Why, yes. Yes, I did. But we as parents had to do some things first before we could turn our attention to our children's estate plans.
Over the Age of Eighteen: They Need an Estate Plan
So my kids live on the West coast. Yours may be away at college or serving in the military, or maybe just living elsewhere in the county. But if they are over the age of eighteen and not living full time with you, they need their own estate plans. Your adult child's estate plan does not have to be complex, but it does have to cover all of the bases.
An Advance Health Care Directive May Be the Most Important
My kids' needs are fairly complex for a variety of reasons. But fundamentally, the thing my wife and I worry the most about is what if they get sick or injured? Who will be able to make medical decisions for them if they are unable to do so for themselves? We as parents do not automatically get that right just because we are their parents. And besides, we are all the way over on the other coast. What if it is an emergency? As adults, albeit still in their 20s and early 30s, they need to explicitly and legally grant authority for us to make medical decisions on their behalf. So at a bare minimum, they must complete an Advance Health Care Directive naming us as their health care agent and whatever backup or successor agents they are comfortable identifying.
A Living Will is Part of the Advance Health Care Directive
The Advance Health Care Directive also includes end-of-life medical care instructions – sometimes referred to as a “Living Will”. This tells your health care agent what your treatment desires are if you are in a permanent vegetative state, or death is imminent. Is this a comfortable conversation to have with your children? Not really, but you might be surprised by the depth of the conversation it does lead to. I had to ask my kids would you want life-sustaining measures applied regardless of your prognosis, would you want to be fed intravenously, or have a machine breath for you. Difficult questions to be sure. But we sorted that all out and now Noel and I know and the kids can reflect that in their Advance Health Care Directives. It's better to have that all taken care of now than to try and figure it out at an emotional and difficult time later.
Get the Rest of the Plan Complete
All of this is not to say that the Power of Attorney and the Last Will & Testament are any less important. At least for my kids due to the complexity of their estates, these two documents are very important. But the Advance Health Care Directive may be the most important from your perspective. Nevertheless, the Power of Attorney gives the agent that your child names the authority to make legal decisions on their behalf if they are unable to do so for themselves. Both the Advance Health Care Directive and the Power of Attorney cease to be effective upon the principal's death. So these documents only work while your child is alive but incapacitated. Should they die, then the Last Will & Testament takes effect and controls the distribution of their assets.
What if your adult children have kids of their own? You have grandchildren. That makes it even more critical that they, your children, have an estate plan in place. If you leave money or assets to your children, you would want to make sure that they have made arrangements should they die. You can see how this starts to snowball and become an infinitely more important issue. That is why it is a good idea to consult with an estate planning attorney.
College acceptance letters have been going out this spring. Pretty soon you will be planning on sending your soon-to-be adult off to college. Make sure at a minimum you have them execute an Advance Health Care Directive before they leave. We would be happy to assist you with that.