“However, no one knows the day or hour when these things will happen, not even the angels in heaven”

As a fourth generation estate planning attorney, I can tell you that no one really does know when they may fall ill or die. This is always true, but not something that is in the forefront of people’s minds until some event, like the COVID-19 virus pandemic, brings this uncertainty into focus. Turning to an estate planner is not usually top of mind, but our experience can help you reduce clients’ fear and anxiety that falling ill can create.

The first thing to discuss is how to prepare for even a temporary incapacity, like creating documents to allow another to care for children and pets if there’s a long stay in the hospital.  Beyond paying bills, other questions come to mind, i. e. having someone secure firearms and other tangible property in your client’s home that might be stolen, and even the need to have someone clean out perishable food in the refrigerator.  

Further, in this digital age, there’s the need to establish who can access your client’s data if incapacitated, and provide passwords and usernames, as well as the document to give someone the authority to act on your client’s behalf as a durable power of attorney . 

The second thing to be done is for your clients to tell people what they would like to have done. This can be in the form of a letter, but to make those wishes legally binding it will need to be in the form of a will or a trust. Some things clients can decide for themselves, such as funeral arrangements with a prepaid funeral contract.  
Other things, however, may be circumstances that are unforeseeable, so giving more general instructions is also necessary, including: 

Do your clients have all necessary planning documents?

Estate planning document checklist:
-- Durable power of attorney; 
-- Health care proxy; 
-- Will; 
-- Revocable trust; 
-- Irrevocable trusts; 
-- Declaration of homestead; 
-- Beneficiary designation forms;  
-- Retirement accounts; 
-- Life insurance; and 
-- Annuities.  

Discuss: 
-- Aspects of decision making in incapacity; and 
-- Establish written procedure for friends/family.  

Do your clients’ estate planning documents match their wealth transfer wishes?
-- Detailed outline of wealth transfer objectives; and 
-- The actual terms of wills and other documents match those objectives. 

Are your clients’ assets titled correctly and have they set up the appropriate beneficiary designation forms?
-- Ensure all non-probate assets have right beneficiary; 
-- Evaluate types of non-probate accounts, retirement accounts, charity etc; and 
-- Review ownership/trusteeship of assets.

Have they established and funded all necessary trusts? 
-- Explore the use of trusts as a financial planning tool. 

Hopefully, your clients will not need any of this in the near future, but if they do, having these documents and procedures set in place is invaluable.  

About the author

Matthew Erskine is the managing partner of Erskine & Erskine LLC, a fourth generation law firm, and The Erskine Company, LLC, a consulting firm. He focuses on strategic planning and legal services for business owners, professionals, individuals, families, collectors, and inheritors of unique assets. Helping his clients and their families solve their problems through customized estate, tax and management solutions.

 
The Erskine family has been counsel to client families since 1876, overseeing estate and income taxation planning, personal trusts, dynasty trusts, private foundations, and family offices. Matt Erskine is also active in numerous community organizations in the Worcester, Massachusetts area, including the American Antiquarian Society, the Worcester Economics Club, and the John J Kittredge Numismatic Foundation.