Thanksgiving is a time for giving thanks for our many blessings and for each other. We gather from near and far to be around the Thanksgiving table to be near our family. Our family is dear to us and we to them. But, that does not necessarily mean that they are the right choices to serve in every role in your estate plan.
Let’s look at a recent example from the television program Scorpion (Season 2, Episode 9, “US vs. UN vs UK”). Walter’s sister, Megan, is terminally ill and may die without a breathing tube. She slips in and out of consciousness. She does not want the tube, but without it she might die. She expresses these wishes to her brother and to her boyfriend, Sylvester. But, Walter is too close to Megan to abide by her wishes and let her go. She does not have a health care power of attorney. Walter goes to court and gets an order to keep the breathing tube in while she is unconscious.
When Megan regains consciousness, she marries Sylvester so that, among other things, he would have control over her medical decisions when she is unconscious, rather than her brother. While Scorpion may be interesting entertainment, it overlooks the simple solution, which is ironic given that it is a show about super-high IQ individuals. The easy solution would have been for her to appoint Sylvester as her health care agent. Then Sylvester could have enforced Megan’s health care choices.
Often, we choose those we love to serve in important roles in our estate plan. That’s great. However, consider how the person would be in that role. Can the person perform the functions of that role. For example, will the person appointed as health care agent be able and willing to follow your wishes? As the recent Scorpion episode illustrates, sometimes a person can truly care for you, yet they may not be the best choice for the position. It’s important to keep this in mind as we look around the Thanksgiving table and contemplate who would serve us best in important roles in our estate plan. As estate planning attorneys, it’s also vital to keep this in mind when advising clients regarding their choices.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555