In acknowledgment of National Siblings Week, BRMM Law’s shareholder Danielle Mayoras appeared on WWJ Radio to discuss the importance of an estate plan to avoid estate disputes between siblings. While most people think of estate planning in terms of what will happen to their assets when they pass, it’s also important to plan for the possibility of health decline and incapacity. Failing to make your wishes clear can lead to conflict among your children — and to your wishes being disregarded.
The Importance of Creating a Plan for Incapacity
Sibling rivalries and insecurities may appear to fade as children grow up and move out of the family home. Unfortunately, long-buried conflicts can come back to life in a crisis such as a parent’s illness or incapacity. Disputes over a parent’s needs and wishes may really boil down to, “I’m closest to Mom, so I know what’s best for her.”
“I think it’s really important that parents understand that when they become incapacitated sometimes their kids don’t always get along — and sometimes mom and dad were the glue that held the kids together,” Danielle advises. “They just assume that if something happens to them, the kids are going to take care of them, and everything is going to go ok. But often, unfortunately, that doesn’t always happen.”
The best way to prevent estate disputes between siblings is to have a plan for incapacity in place. By making your wishes clear, you lift the burden of deciding what you would want off of your children’s shoulders. If you have an incapacity plan, your wishes are more likely to be honored, and your children are free to focus on you rather than fighting with each other.
What Should a Plan for Incapacity Include?
A plan for incapacity is designed to ensure that if you can’t make your own financial and healthcare decisions, someone you trust will make decisions on your behalf that align with your wishes. The more clarity you provide in your estate planning documents, the easier it will be for your chosen decision-maker to honor your preferences.
The following documents should form the foundation of your incapacity plan:
Durable Power of Attorney for Health Care and Patient Advocate Designation (PAD): This document designates someone to make medical decisions for you if you become unable to make them for yourself. This document also allows you to specify what types of medical treatment you do and do not want, including life-sustaining care. You can also give your designee the authority to consent to mental health treatment for you and to donate your organs after your death.
Financial Durable Power of Attorney: A financial power of attorney authorizes a person you have chosen to act on your behalf when it comes to your finances, including paying bills, conducting business, handling tax matters, and managing your assets and investments. A financial power of attorney is “durable” when it survives your incapacity; it is therefore important to have a durable financial power of attorney as part of your incapacity plan.
If you do not have these documents in place, your family members may be forced to go to court to obtain guardianship and/or conservatorship over you. A guardianship allows someone to make personal and medical decisions for an incapacitated person; a conservatorship gives authority to make financial decisions. Having a durable power of attorney for health care and patient advocate designation as well as a financial durable power of attorney prevents your loved ones from fighting over whether you need a guardian or conservator, and if so, who should act in those capacities.
You will notice that the list above does not include a living will. Many people are surprised to learn that in Michigan, “living wills” are not a legally enforceable part of an incapacity plan. Instead, wishes regarding end-of-life care can be specified in the Patient Advocate Designation form.
The time to create an incapacity plan is before you need one, while you still have the legal capacity to execute the documents involved. Otherwise, any legal documents you execute could be declared invalid. Making an incapacity plan is a gift to your children. It gives them peace of mind that they know your wishes and are able to carry them out. It is also a gift to yourself; you will know that you did everything possible to prevent needless conflict and preserve your children’s relationships with each other.
What Documents Should Be in Place to Prevent Estate Disputes Between Siblings?
A parent’s care is not the only potential source of conflict between siblings. Disputes over a deceased parent’s estate are also common. The period after a parent’s death is often filled with grief and stress, which can heighten a child’s feelings that they are being treated unfairly in the distribution of the estate.
Fortunately, a well-drafted estate plan can provide clear guidance regarding the estate and prevent confusion and conflict. A comprehensive estate plan may contain one or more trusts, a last will and testament (commonly called a “will”), or both.
Over the last few decades, trusts have become an increasingly popular estate planning tool. There are various types of trusts, designed for different needs; a revocable living trust is one of the most common. Trusts generally bypass the probate process, which many people find appealing. Another advantage of a trust is that assets in a trust can be held and managed for beneficiaries who may not be ready to responsibly manage their full inheritance.
By setting forth clear instructions about the distribution of assets in the trust document, you can prevent the confusion that often leads to conflict between siblings. You may also want to consider appointing a professional trustee instead of a family member, to guard against potential allegations of unfairness or incompetent management.
A last will and testament is another tool through which you can dictate how you want your property distributed after your death, and to whom. Unlike with a trust, an adult beneficiary of a will is entitled to receive their entire inheritance at once. In some cases, a less financially-savvy sibling may burn through their inheritance and turn to the others for financial help, potentially creating resentment on both sides.
The best way to prevent estate disputes between siblings is to discuss your financial situation and family dynamics with an experienced estate planning attorney. Without an estate plan customized for your family’s needs, your children will lack clarity about your wishes, and the likelihood of sibling conflict increases.
Contact Our Experienced Michigan Estate Dispute Lawyers
No parent wants their health issues or estate distribution to create a rift between their children. A comprehensive estate plan is the best way to prevent estate disputes between siblings, both before and after you pass away.
Danielle Mayoras and the estate dispute lawyers at Barron, Rosenberg, Mayoras & Mayoras help clients with a wide variety of estate planning matters to prevent family conflict and ensure their wishes are honored. Schedule a consultation today by calling (248) 213-9514 in Michigan or (941) 222-2199 in Florida to learn how we can help. You can also use our simple online contact form.