Does your Estate Plan specify what needs to happen if the caregiver to a sick family member dies first? Does your Living Trust name another Trustee and does it give them Durable Power of Attorney in case this happens? The California Estate Planning Attorneys at CunninghamLegal are Elder-Care experts and can construct your Estate Plan in a way that helps your family stay out of Probate.
Few Estate Plans effectively deal with the common situation in which the caregiver, let’s say the wife, dies before her sick husband. How common is this?
Sixty percent of the time, the caregiving spouse dies before the sick spouse. Got that? Sixty percent of the time.
At first, this statistic seems counterintuitive. Shouldn’t the sick spouse die first? But think about it. Who is getting the proper nutrition? Who is going to their doctor appointments? Who is getting all the care? And who is getting worn out caring for the other?
Sadly, we often see this situation in our practice–and if you want to get some help from our expert team, get in touch with us today.
Indeed, just to repeat the point, we see the caregiver pass first more often than not. If you take away the cases in which the sick spouse has a terminal illness, the statistic is even higher.
Let me go back to the case of my grandmother. My grandfather was disabled for many years, and grandma took care of him with wonderful, diligent care. So diligent, that we had a running joke in our family:
“Grandma, let’s go have some fun this weekend.”
“You go ahead,” she’d say. “We’ll have fun when your grandpa dies.”
And we’d all laugh.
Well, she died in her eighties of a massive heart attack and he lived to be ninety-three. I think that taking care of him literally wore her to death. I believe she did not take care of herself properly. It’s hard for me to think about it any other way.
A Living Trust Can Prevent Catastrophe – Why do you need a Trustee? What happens if there is no Trustee? Why you need a Power of Attorney.
Again and again, my firm sees this situation: one spouse, let’s again say the husband (we’ll call him Jack in this example), becomes incapacitated, and for a time, the married couple’s lives together go on functioning with some normality. The wife (let’s call her Margaret), can manage most things by herself. Jack and Margaret have joint accounts, joint tenancy in property, and Margaret muddles through to make healthcare decisions for Jack. The couple figures that when Jack dies, Margaret will still be in control of everything through their joint tenancy and joint accounts. So, they never get around to making a formal Estate Plan.
But what if Margaret suddenly passes away? Now, Jack lies helpless in his bed, without the mental capacity to manage his own affairs, and everything falls into chaos.
Thankfully, their responsible adult daughter, Mary, is willing to step in for her dad and handle all his affairs. But without a Living Trust naming her as Trustee, and without a durable Power of Attorney, poor Mary will have to go to Probate Court and petition for a Conservatorship. She will have to hire a lawyer. She will have to be investigated and approved. She will have to go to the courthouse and pass through the metal detectors. Thousands of dollars will have to be spent from the Estate, not just to pay for the bills, the property taxes, even the funeral for Mom—but for court and attorney’s fees. If the family assets are large, or some other interested party like a sibling tries to interfere, the amount may be tens or hundreds of thousands of dollars.
Meanwhile, Mary may grow frazzled and debilitated herself. She may have to give up a job to deal with this hassle. She may neglect her kids. She may endanger her relationship with her husband. I often say to people, “It’s not about the money — but it is about the money.” In cases like this, it may start out about the money, but in the end, it will be about the hassle. People would often happily give up their inheritance to be rid of the burdens which a death or disability has dropped in their lap.
If you have questions about caregiving or how a Living Trust can benefit your family, attend one of our legal webinars.
What Do We Do as California Estate Planning Attorney Specialists?
The lawyers and staff at CunninghamLegal help people plan for some of the most difficult times in their lives; then we guide them when those times come.
Make an appointment to meet with CunninghamLegal for California Estate Planning and Trust Administration. We have offices throughout California, and we offer in-person, phone, and Zoom appointments. Just call (866) 988-3956 or book an appointment online.
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We look forward to working with you!
Best, Jim
James Cunningham Jr., Esq.
Founder, CunninghamLegal
