Not quite empty nests!
I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.
In my first post, I gave an outline of some of the terrain I would be covering here. In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan. The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges. A colleague emailed me after seeing the post, commenting “It’s as if you were listening to my recent conversation with my husband of 18 months!”
Okay, let’s get started with the third post already! Here’s a link to some helpful information about stepfamily members and inheritance. I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series. In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are described and set forth from the parent’s point of view in the estate plan. Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the “what happens if” and the “what happens when” scenarios in the blended family or some “de facto”[i] version of it.
Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions. Most of us like to go directly to problem solving mode when we face a challenge. What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making. If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions. I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.
I’m focusing on one particular issue in today’s post – advance directives for health care. “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will. These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care. Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent. An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent. This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.
I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context. A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children. This is seldom what people want!
With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved. Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief. I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted. It goes without saying that this should be an ongoing discussion over the course of our lives!
You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient. Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family. Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning. In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.
And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy? Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation. Inside the space is a house, complete with a bathroom with a wavy tile floor. I think the “eternal return” theme goes nicely with the desire of so many of us to remarry. Here is that oft-quoted statement from Oscar Wilde about marriage:
Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.
That’s all for now, will continue next time with more details for the ongoing discussion. . .
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[i] I use the term de facto here to distinguish from de jure blended family. Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections. Here’s a good description of the difference between the two legal concepts.
© 2016 Barbara Cashman www.DenverElderLaw.org