An Avoidable Tragedy––Craig Watson

An Avoidable Tragedy

By Craig Watson

Don’s father, Al, was 68 years old and in average health. Don thought the world of his Dad. Don considered Al to be strong and organized, the family patriarch who always kept everything under control. Because of Don’s great respect for his father, Don never asked his Dad if he had prepared an estate plan.

One Monday morning, Don received a call from the police that his Dad had been found unconscious. When Al didn’t show up for work Saturday, his employer tried to call but didn’t investigate further until Monday. Al had experienced a major stroke and had lain on the floor all weekend in his waste, causing bed sores. Because Al didn’t get to the hospital within an hour after his stroke, the damage was severe and permanent.

Don began trying to take care of Al’s financial affairs while he was in the hospital. Don quickly discovered that Al did not have a Power of Attorney so Al’s bank would not discuss his Dad’s finances, let alone allow Don to pay Al’s bills. Don was extremely stressed because he couldn’t pay his Dad’s bills. Don was shocked to learn that his Dad didn’t have a Will, Medical Power of Attorney or any other estate planning documents. The hospital and doctors were reluctant to give Don any details about his father’s medical condition or prognosis because he didn’t have a Medical Power of Attorney.

Al was mostly unconscious so Don could hardly discuss any of these issues with his Dad. Al was certainly unable to sign anything. Don went to see a general practice attorney that he knew from high school. After he told the attorney about his Dad’s condition and all of the problems Don was having, the attorney actually drafted and charged Don for a Will and Power of Attorney. Never mind that Al was completely mentally and physically incapacitated and that the attorney had never met Al. In case you were wondering, this is a true story; you can’t make this stuff up.

When Al couldn’t understand or sign the documents, Don decided he better go see an Elder Law attorney. The attorney explained to Don that it was too late for Al to sign estate planning documents. In order for Don to be able to pay his Dad’s bills and make decisions for his Dad, he would have to ask the county court to appoint him as his father’s guardian. Guardianship is expensive but it was the only choice due to Al’s failure to plan. To begin the guardianship, Don had to get a letter from Al’s physician stating that Al was not mentally capable of managing his affairs. After a guardianship is established, the court requires the guardian to file a pleading to seek permission to pay every bill. The law required Don to obtain and pay for a surety bond. Don was also required to file an inventory listing all of his Dad’s assets. Don would also be required to file an elaborate annual accounting detailing all receipts and disbursements.

After Don had incurred legal fees and begun the process of establishing the guardianship, his father died, meaning that the legal fees were wasted. The probate of Al’s estate was more expensive and took longer because Al never got around to preparing a Will. Several additional factors compounded Don’s grief. He was very disappointed that his last memory of his Dad was tainted by the reality that his Dad was very irresponsible and inconsiderate for failing to prepare an estate plan to facilitate his children’s management of his estate during a sudden medical crisis and after death. While helping prepare this article, Don commented that he wished that he had been more assertive about asking his Dad if he had an estate plan.

Take away lessons:

(1)  Make a Will and sign a Power of Attorney. (2) Ask your parents about their estate plan. (3) Discuss your estate plan with your adult children. (4) Use an attorney who limits his practice to estate planning to prepare your estate plan. (5) Review your estate plan regularly. (6) If your parent lives alone, call them every day to check on them and “just chat.” (7) Don’t deny that “it” could happen to you or your loved ones.

Craig Watson’s law practice focuses on Estate Planning, Probate, Guardianship and Elder Law. Formerly a CPA, he has almost 25 years of experience. Call 903-813-8500 or go to www.craigwatsonlaw.com.