Difficult Discussions

Things like:

• Sudden, complete and total disability
  
• Death
  
• Funerals
  

There’s a pretty obvious commonality here: these are not pleasant things to talk about.  They’re not even pleasant things to think about.  But the importance of addressing them now, when both parties are healthy, cannot be overstated.

Assume you avoid these uncomfortable conversations, and then someone close to you is suddenly, completely and totally disabled.  Imagine this scenario:  a close relative has just been in a car accident.  She is in a coma and is not expected to recover.  You receive a phone call.  Does she have a Living Will?  Do you have a copy of it?  Does Cousin Bob?  Maybe she does, but the only copy is in her safe deposit box…can anyone access it?  Has someone been given the legal authority to make medical decisions on her behalf if she is unable to do so?  If so, who?

Incidentally, if you can’t find a copy of the Living Will, or if it is written unclearly, no one will be able to exercise that authority regardless.  Doctors will do whatever is necessary to keep her alive, even if ‘alive’ means ‘as a vegetable,’ with no chance of a meaningful recovery.

And we haven’t even begun to discuss her financial life.  If she is going to be incapacitated for an extended period of time, this is a very real issue.  Does she have a Durable Power of Attorney?  If so, who is named as Agent?  Does the Agent have a copy of the document?  Does the Agent know where her checking, savings, and investment accounts are held?  Does the Agent know what automatic deposits/ debits to expect in her accounts?  What bills need to be paid?  The list goes on and on.

And while we’re on the subject, if she does not have a Durable Power of Attorney, and the incapacity is expected to last a substantial amount of time, someone may need to be appointed her Guardian in a court of law.  This is a much more difficult, time consuming, and expensive process than using a Durable Power of Attorney.

Do you really want to be dealing with grief and logistics simultaneously?  Wouldn’t it be better to have answered these questions before the car accident?

A situation like this is never easy.  If anything, it can be measured in degrees of difficulty.  But it will be less difficult if you can say, “I know what she wanted in this situation.  We talked about it.  She has a Medical Power of Attorney and an Advance Directive for Health Care.  Bob is named as surrogate to make medical treatment decisions for her, and he is on his way here with the document.  If she is ‘in a terminal condition or in a state of permanent unconsciousness,’ she DOES NOT WANT cardiac resuscitation or a feeding tube.”  You won’t feel good about the situation, but you will at least be able to take some comfort in knowing that you are doing what she would have wanted in this situation.

Of course there are similar scenarios involving premature death.  The details are different – instead of a Living Will or Durable Power of Attorney, you are looking for a Last Will and Testament, life insurance policies, financial assets and debts, and a burial plot (if the deceased had one).  All of this while writing an obituary, trying to plan the type of funeral the deceased would have wanted, and grieving.  The details are different, but the importance of discussing the issues while both parties are alive and well remains unchanged.

Help make a potentially difficult situation a little easier by having: THE CONVERSATION.  How do you start a conversation like this?  Is there any way to start it without sounding paranoid or depressing?

My advice would be:

Keep it as casual as you can.

• Know your audience:  you can even start with a joke if you think it will help set the tone.
• You might be able to ease into the discussion by mentioning it in a phone call or email first, “Sometime soon, I’d like to talk about…”  That will get them thinking, and they won’t be caught by surprise when you broach the subject in more detail later on.
• Go first.  Be willing to tell people about your plans before you ask about theirs.
• If you are in the process of creating or revising your estate planning documents, that is a great opening.  Just start with: “I’m having my estate planning documents drafted/ revised, and I’d like to make sure you know what plans I have in place just in case.”  If you’re talking to someone you would like to name as an Agent or Contingent Agent in your Durable Power of Attorney or Living Will, make sure they understand what would be required of them and would be willing to serve in that capacity.  Ask them if they’ve thought about these issues too and if they have documents prepared.  Tell them that drafting/ revising your documents has gotten you thinking, and you’d like to make sure your family/ friends are familiar with your plans – and you’d like to be more familiar with their plans – just in case.  Encourage them to have documents drafted if they have not yet done so.
• Another possible opening:  “I hope you’ll never need to know this, but…”
• Or: “I have this great estate plan in place, but I don’t think I’ve ever told you what it is…”
• Or:  “I’ve been thinking about what would happen if something happened to me.  I’d like you to know what I would want just in case…”
• If they seem resistant, you can always drop the subject – for now.  You’ve planted a seed.  Wait awhile and try again.  They may be better prepared for the discussion when it is brought up a second time.

The conversation will most likely be neither easy nor fun.  It may not even turn out to be necessary.  Let me rephrase that:  We hope it will not turn out to be necessary.  But it’s good protection.  The consequences of a sudden and complete disability or a premature death are devastating under any circumstances, but they are made many times worse if they leave loved ones scrambling for paperwork, trying to locate accounts, and second-guessing themselves (and each other!) while trying to figure out what an incapacitated or deceased relative would have wanted.

So: Be prepared.  Talk to your loved ones today.