Key Legal Documents for Seniors

The #11 movie quote of all time, according to the American Film Institute, from the 1967 film Cool Hand Luke  is “What we’ve got here is failure to communicate”.

 If you don’t have a Will, no one knows your wishes, and to the extent you detail them, there is less to fight about after you are gone.  According to Lexis-Nexis (note 1.) as of 2007, 55% of adults Americans did not have a will.  Among minorities the percentages are even lower with only 32% of African American adults and 26% of Hispanic adults having wills.  Anyone with ANY property should strongly consider looking into having a will, as well as other significant documents which reflect their significant wishes after they lose the ability to communicate them.  Thinking about “when you ae gone” may seem “gloomy”, but a little planning and communication of those plans can remove some of the sting for those remaining.

Some common types of documents

1. Wills – let you detail your wishes for the disposition of your assets and property after you are gone.  You define an executor who oversees this, and it also allows you to name guardians for dependent children.  Wills usually don’t preclude probate. But they do make it much simpler.
2. Revocable Living Trusts – can function like a will, but can keep the process out of probate and helps ensure estate privacy.
3. Durable power of Attorney allows you to pre-designate another person to make financial and legal decisions on your behalf if you lose your ability to make decisions.
4. Advance Health Care Directives, depending on the constraints in the State where you live, describe your wishes if you become incapacitated.  This includes a Health Care Power of Attorney and directions on the extent of Health Care you desire at end-of-life.  This may take in to account care in accordance with religious beliefs and family wishes as well.

Digital Assets

A significant asset class that gets little attention are “digital” ones. Very few states have issued laws that deal with this area, and if they do, the laws may not provide results that the owners may prefer upon their incapacitation.  Relying on the online service providers policies may not yield any better outcomes.

Some examples of issues that can arise:

1. A Power of Attorney usually doesn’t provide access to on-line banking and if accounts have been setup a real mess can result with real financial penalties.   Billing accounts setup as electronic only can be very difficult to unravel without access to the e-mails where notifications are delivered.
2. Renewal of URLs probably requires access to a specific e-mail account where renewal notifications are sent and from which renewal is made. Access to the DNS service provider account may also be required. Without access, the URL will likely expire or be locked for a prolonged period if it is not lost altogether. 
3. Many people now store large photo/image collections in “the cloud”.  These are gone if the account and password cannot be accessed.
4. Facebook, twitter, Instagram and other accounts and their content can’t be accessed or changed or taken down easily if at all.
5. If family or friends are unable to access these accounts, it may be difficult to find out that an identity-theft has taken place, with theft of real assets resulting.

Identification of accounts/access and assets are important as a first step.  Next is where electronic assets are located.  This could be bank accounts or other type of funds and investments.  Image storage and digitized document storage can vary widely in value based on what they contain.  A word of caution: Wills can become public information, so it may be wise to have the will reference a separate document that is private, which contains account numbers and passwords.  A separate document is also easier to update.  Further, the Will may provide specific access for specific persons only which may help keep secrets secret.  You may want to keep a printed copy of this in a location that is easily found by your executor.

Wills are relatively easy to do.  A simple one can be done with inexpensive software for $50 or less and are valid in most States. More complicated estates probably will benefit from the advice of a lawyer.  Trusts are more expensive and generally involve legal assistance as well.  There may be some low-cost legal help available in your area and a call to your local Area Agency on Aging or 2-1-1 may provide some good alternatives.

Footnotes:

1. http://www.lexisnexis.com/en-us/about-us/media/press-release.page?id=1270146453917826

Copyright AGIS Network, 2015