A Los Angeles parent with adult children is incapacitated by severe illness. The children are uncertain whether estate planning documents exist, including powers of attorney that permit someone to manage the parent's finances or health care decisions. The children don't know whether the parent has made a will or where to begin looking for one.
An estate plan and communication with heirs would have prevented legal and emotional confusion. What can the children do, other than searching blindly for legal papers?
No assumptions can be made about the parent's estate until the children find out what, if any, plans a parent has made. The first step is to contact the parent's attorney. The parent also may have designed an estate plan without legal assistance, in which case the scramble for documents is far from finished.
The contents of an estate plan can remain as private as an individual chooses, but secrecy has drawbacks. Attorneys strongly encourage clients to provide family members with instructions for possible incapacity or death.
A legal directive is needed to allow someone to make decisions for an individual who cannot. Powers of attorney, wills and other estate planning documents can be drawn up from a hospital bed, but waiting until then is discouraged. A decedent's mental capacity can come into question during a will dispute.
Children uncertain about a parent's last wishes must tread carefully. A biological relationship does not give a child the right to act automatically in the parent's stead. There are no default agents, executors or trustees. The estate plan creator or a court makes these choices. A willingness to handle these jobs is not the same as having the legal right to do so.
Attorneys emphasize pre-planning for good reason. A person's last wishes deserve to be honored. Directions must accompany an estate plan for a decedent's desires to be fulfilled.
Source: napavalleyregister.com, "Successor trustees and beneficiaries" Len Tillem and Rosie McNichol, Jul. 25, 2013