Accidents Happen… Is Your Estate and Disability Plan Ready?
It’s a natural human instinct to want to wait until the last minute to do things. Many of us procrastinate. But sometimes, putting things off is the worst thing you could do. Consider the case of Ms. A.
What Happened to Ms. A?
Ms. A was a 55-year old single, professional woman. She had never been married and had no children. She lived comfortably with Mr. B, 57, her long-time boyfriend. She no longer had parents and never had any siblings. Her only relatives were an elderly aunt and uncle with whom Ms. A was estranged, and had never had a real relationship.
Ms. A’s intent was for Mr. B to inherit her assets should something happen to her. She meant to execute an estate plan, but she was young and healthy and put it off for a later time.
One day, Ms. A had a sudden and unexpected major heart attack while driving her car on the highway, resulting in a terrible car accident. Ms. A was rushed to the hospital but quickly slipped into a coma. After close to three weeks in a coma, Ms. A died.
Ms. A had no legal documents in place at all — no health care proxy, no power of attorney, no Will. This led to several major legal concerns.
Issue #1: Who had authority to make medical decisions for Ms. A without a health care proxy in place?
Answer: New York’s Family Health Care Decisions Act (FHCDA) allows a patient’s family member or close friend to make health care decisions for a patient who lacks the capacity to make their own health care decisions and did not leave prior instructions or sign a health care proxy. There is a statutory hierarchy as to who has the authority to make these decisions. It is important to note that the FHCDA has limitations.
Issue #2: Who could legally access Ms. A’s bank accounts to pay her bills without a power of attorney in place? (This would be particularly important if she remained in a coma for a long time.)
Answer: No one. In order for someone to have that authority absent a power of attorney, a legal guardianship proceeding would need to be initiated in court to ask a judge to appoint a guardian to have these powers. This is one reason that a power of attorney is so very important.
Issue #3: Who has the authority to serve as administrator of Ms. A’s estate since she had no Will naming an executor? Who inherits her house and other assets?
Answer: Next of kin have priority to serve as administrator. Absent next of kin, the law allows for other parties, such as a public administrator, to be able to serve in that role. Next of kin are also who inherit when there is no Will or other estate plan in place.
What happened in Ms. A’s case?
Sadly, because Ms. A had not legally memorialized her wishes, they could not be followed. Her long-time boyfriend, Mr. B, was told he had no inheritance rights. An elderly estranged relative of Ms. A’s who she barely knew and wouldn’t have wanted in this role was appointed as administrator. Furthermore, the estranged elderly aunt and uncle are due to inherit all of Ms. A’s assets.
Could this have been prevented?
Absolutely. Ms. A should have had an estate and disability plan in place to protect her wishes about her health care, financial decision making, and the distribution of her property after death. By procrastinating, Ms. A caused much more heartache for her long-term boyfriend who she intended to be the beneficiary of her estate.
Have you been procrastinating?
Take Ms. A’s story as a sign that now is the right time to make sure your affairs are in order and that you are the one in control of your future. We are happy to assist with all of your estate planning needs. Email us for an appointment.
