Don’t Make Things Difficult For Those You Love–Plan Ahead

It is important to plan ahead for your family and loved ones to help in illness or to deal with issues after your death.  Yet it is something that is often put off.  The delay in planning ahead can make it very difficult for those we love.  The time to make plans is when we are healthy and thinking clearly about the future.  It may be too late after a stroke, illness or Alzheimer’s disease has affected our ability to make decisions.

If you have not made clear legal plans naming someone to make decisions for you in illness it may be necessary for your family or friends to go to court to appoint a guardian to make these decisions. A court-appointed guardian can make decisions about your personal needs. A court-appointed conservator can make decisions about managing your money and property. This takes time and costs money.

If you have not made clear legal plans about what happens after your death, your spouse, partner, children or friends may not be able to pay your funeral expenses. They may not get the property or money that you wanted them to have. In particular, not making legal plans may create problems if you are re-married, if you have children from different relationships, if you are unmarried and living with a partner, or want to leave things to certain family members, friends or organizations.

If you want your partner or a friend to make decisions for you or to get your property after your death, you need to make legal plans for this to happen.

The planning is best done if you have first carefully thought through your needs and goals. Here are some things to consider as you make your plans.

Planning Ahead In Case I Can’t Make Decisions On My Own

• Make a health care/medical power of attorney appointment to name someone whom you want to make health care decisions for you when you are unable to do so.  

• Make a general/financial power of attorney appointment to name someone whom you want to manage your finances for you when you are unable to do so.  This can include paying your bills, applying for assistance, and selling property. 

• Make a “Living Will” if you do not want to be kept alive with medical “life sustaining procedures” if you are terminally ill. 

You can end or make new power of attorney appointments or change your living will in the future if needed. 

• Make sure your spouse, partner, or the person you appointed as general power of attorney has access to your legal documents and knowledge about your accounts,  investments, and property. 

• Make plans for long-term care should you need to go to a nursing home. Long-Term Care insurance is one option to consider. 

Planning Ahead for After Death

• Is your spouse or partner the joint owner of your home “with right of survivorship?”  This would mean that the home passes automatically to your spouse or partner without the need to open a “probate” court action to transfer the home.   

• Do you have beneficiaries named for your bank accounts, retirement accounts, pensions, investments, and life insurance? This allows money or assets to pass to the beneficiary without the need to open a “probate” court action.  

• Do you have a plan for burial or cremation and for your funeral? Have you pre-paid these costs?  Planning and paying ahead means that your loved ones can focus on the memories. Irrevocable, pre-paid funeral plans are not counted as a resource should you need to apply for Medicaid assistance for care.

• Have you made clear who is to make decisions about your burial and funeral? You can name this person with a DECLARATION OF DESIGNEE FOR FINAL DISPOSITION.  If you have not named someone to make these decisions, Iowa law has a list of your relatives to make the decisions. First on the list is your surviving spouse. 

• Have you made a “will” or do you have a “trust” to list what happens to your property after you are gone? Your will may need to be “probated” depending on the property and amount of money that you have. Probate is the court action to carry out your will.  Trusts do not need probate. There are different kinds of trusts that can be used for different reasons. You should review wills and trusts with an estate planning attorney.

If all your property passes to beneficiaries or joint owners of your property, a will or trust may not be needed. You cannot give away property in a will or trust that already goes to a surviving joint owner or a beneficiary.

If you don’t have a will (or trust), then under Iowa law the property would go to your heirs. This would usually be your surviving spouse unless you have children from other marriages.  If you have no spouse, your property would go to your children.  If you have no spouse or children, then it would go to other relatives.  

• If your spouse dies or there are changes in your family or relationships, you need to review your planning. You should review your plans regularly to make sure they still meet your needs. Planning documents that are out of date need to be destroyed and new ones made. JUST WRITING IN CHANGES ON YOUR OLD DOCUMENTS WILL NOT WORK. You need to follow legal rules to make the changes. Talk to an attorney for help with making the changes.

This is some basic information about planning ahead.  Planning for the possibility of long-term care or to pass resources on to your loved ones can be very complicated.   Planning ahead is based on your specific goals, property, resources, relationships, health, and so forth. Do not base your plans on what someone else has done. Their situation may be much different than yours. In illness or death you will not be in a position to correct your planning.  This important planning is best done with an attorney who practices in the area of estate planning and also understands the Medicaid rules.

Contact Iowa Legal Aid or the Legal Hotline for Older Iowans for more information about these advance planning issues.