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End of Life Planning is More Than Creating Legal Documents-What is Missing? Part 2


In the last issue the concepts raised were that we focused too much on the medical part of end of life planning, not what matters most to us and our loved ones. In this issue I discuss the common issues that may generate conflict at high emotional and financial costs in the form of attorney fees. If the attorneys and their clients spend the time considering the effects their choices in estate planning have on others, this conflict can be minimized or avoided.

One common mistake of the attorney and client is to not consider the “effects” the end of life plan will have on others. A common issue that arises which leads to, or perpetuates conflict, is putting one child in control over the money, living arrangements, or estate administration without any discussion or any plan for sharing of information with other children of loved ones. You may be placing your child in the role of making decisions contrary to what the other loved ones may think you want, or even to the detriment of the sibling. It is not uncommon to ask participants in a family meeting or mediation what they think their parent or loved one wanted and get 2 (or more) completely conflicting answers. An example is one child may disagree as to the level of care you should receive or where you live. Another example is one may want to use or invest the assets differently. This creates conflict.

During your life or after you pass, one child may be responsible for managing assets which ultimately pass to the others. The trustee or executor is placed in a position to explain, or worse justify, how the money was invested or spent. Many case are filed in court for a decision as to why the inheritance cannot be distributed sooner if the beneficiary has current financial needs or “where the money went” while the other sibling controlled the assets. With the less than robust economy, these conflicts will be exacerbated. Many of these court cases can be avoided with proper planning, open discussion, and serious consideration of who controls the assets or medical decisions.

A well drafted plan, a family meeting and in cases of elevated conflict, a mediation is the answer. Requiring exchange of information with all to make them feel involved in decision making or the process is important. Many disputes and conflicts can be avoided by communicating and sharing information. Lack of information and communication leads to speculation and suspicion. This results in less cordial communication and often filing of cases in the courts.

These issues are better addressed in the present as part of the estate planning process since when the issues arise, it will usually be “crisis time”. The added stress on everyone during a crisis makes it more difficult to act “reasonably” and patience is at a low. People are then more apt to say things that lead to conflict. A little conflict now though a family meeting can prevent “big” protracted conflicts in the future. Make all your wishes clear in your end of life planning documents and communicate your wishes to all your loved ones. This is done best with all present at the same time so everyone hears the same wishes expressed. Consider a family meeting with everyone present or via telephone conference call. If you expect conflict, a professional with knowledge and training should act as a facilitator/mediator. There will be disagreement, but only through communication and addressing the tough issues can you be assured that your last wishes be honored by all. If you want to have others respect your last wishes, they need to know what your wishes are. It is best that this comes from your lips, not just the often less than clear legal document.