Estate Planning Problems - Should I Do Estate Planning If My Spouse Won't Cooperate?

Q: My parents are in their early 70s and have done no estate planning. My mother has wanted to do planning for the last several years but my father refuses to discuss the subject. They own their home as joint tenants, and they have a couple of bank accounts, retirement accounts, and some life insurance, as well as their vehicles. Can my mother do her own estate planning, even if my father still refuses to cooperate? 

A: Yes, your mother can and should do her estate planning. While she may be limited with what she can do since your father is unwilling to cooperate, she can do some important basic planning. Without your father’s consent and cooperation, she may not be able to utilize the most advantageous tax saving options, but she will be able to get some very important legal safeguards in place for herself. At the very least, some basic documents that she should immediately request include a health care power of attorney, a financial power of attorney, a living will (if she wants to dictate how her end of life treatment will be handled), and, if possible, a simple will or trust.
​
With a Health Care Power of Attorney, your mother will be able to appoint a person, or a group of individuals whom she trusts, to make immediate health care decisions on her behalf if she becomes incapable of making decisions for herself. Without this important document, in an emergency, the physician or hospital may require additional paperwork and permissions prior to treatment. This document becomes especially important if the emergency occurs outside your parents’ local area and your mother’s regular physician is not present. The time that it takes to gain additional permissions and paperwork could drastically impact your mother’s care in an emergency.

---

When your mother prepares a financial or business power of attorney a/k/a Durable General Power of Attorney, she can be assured that someone will be able to pay her bills, sign legal documents (including taxes, bank documents, and deeds), if she is unable to do so herself. Because her appointed agent(s) are granted considerable authority, your mother can limit their power and control over her financial assets in several ways. Even with limitations placed on the agent(s), it is very important that your mother appoint individual(s) in whom she has full confidence and trust. She should be aware that her appointed agent(s) does not have to be her spouse or a family member.

If your mother wishes to have some control over her medical treatment options in the immediate time preceding her death, she should inquire about signing a living will. This document is your mother’s written declaration that if two (2) physicians (one of whom is her treating physician) have examined her and ascertained that (1) she is dying and (2) that any procedure or treatment proposed or currently being administered would only serve to prolong the dying process, then any such treatments should not be started or, if they have already been started, should be withdrawn. Most living wills are drafted to allow the administration of pain management during the dying process, but she can elect whether to receive food and hydration (which can prolong her death) as one part of her end of life journey. 

Finally, she could have a simple will or trust prepared to transfer her individual assets and her share of marital assets to her chosen beneficiaries. A will can transfer her assets by way of the probate court and generally requires a longer and much more expensive process than a trust administration, but is more modestly priced to establish by comparison. A trust is almost always more expense to create, but is usually a much faster and less expensive way to distribute assets after death and avoids the public access of her information through the probate court. Which estate planning tool is most appropriate will depend on the value of her assets, and whether they are owned by her individually or in part with someone else, among other factors. Again, because your father is uncooperative at this stage, there will be limitations regarding her asset transfers and her choice of beneficiaries, particularly if your father refuses to sign a document consenting to her will or trust. At the very least, if her planning is done properly, her estate settlement should be faster and less expensive for her surviving heirs and beneficiaries than if she had died without a will or trust.

Be forewarned: You do not want to slap together estate planning documents on your own through an online service, especially since your mother owns assets jointly with your father. This is one of those times when it pays to see an experienced estate planning attorney. 
​
If you have a question about estate planning for married persons, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on estate planning, Medicaid and long-term care planning, business formation, family business/small business succession planning, probate, trust administration, real estate, and related matters.