Tradewinds August 2020 Web Final

What If ……
By: Stella Knight
Question. Several years ago, my husband
was diagnosed with dementia. He is still living at
home and we manage, but recently I have become
concerned about our situation. What if I should get
COVID-19? What if I should die first? Who would
take care of my husband? Who would pay the bills
and make medical decisions for him? I am staying
awake at night and thinking about all the possibilities
– what if? My health is beginning to suffer. We
both have wills and durable powers of attorney. We
are not wealthy people, but I guess our assets are
about $200,000 - $300,000 (including the house,
retirement accounts and bank accounts). Is there
anything I can do?
Worried Sick
Dear Worried. First, as the Bible says, “Do not be
anxious about anything but by prayer…” I am glad
you both have wills and durable powers of attorney.
Those documents are a good first step, but
you should also consider a health care power of
attorney and a living will. In a health care power of
attorney, you name a friend or family member to act
as your health care agent. Then, if you are unable
to advise your doctor regarding the health care you
wish, your health care agent is given the power to
make your health care decisions. A health care
power of attorney is different from a living will (a
declaration of a desire for a natural death). A living
will allows you to express your wishes about life
prolonging measures in the event you are permanently
unconscious, suffer from severe dementia or
are terminally ill. The health care power of attorney
and living will may be referred to as advanced
directives.
There are different ways to pass property at
your death. Some ways to pass property are by
operation of law, will or trust. Operation of law
means that assets which you own jointly with your
husband, will become the sole property of your
husband at your death. In addition, assets which
have your husband named as the beneficiary, such
as your retirement account and life insurance – are
paid to your husband at your death. You do not
mention whether you have children or not.
If you die first, some issues you may wish to consider
are:
1. If you husband is unable to manage his
financial affairs, the agent in the durable power of
attorney would manage his assets on his behalf.
Since you are likely named as your husband’s
agent and in the above scenario you have died,
has a successor agent been named? If so, is that
person still willing and able to act?
2. Have you and your husband discussed where
he would live if you died first? Would you have
sufficient resources to hire in-home care or would
he move into an assisted living facility? Are there
family members that would assist with his care?
There are so many variables to consider – they are
beyond the scope of this article. I would recommend
you review your existing documents. At the
very least, you and your husband (if he is still competent)
should update your durable powers of attorney
to include successor agents. Is the person you
name as your successor agent capable of handling
the increased responsibility? Would a professional
(rather than a family member or friend) be a better
choice for your agent?
Also, you should review your will. Should you consider
a trust for the benefit of your husband? If he
survives you, a trustee may be named to manage
the assets for your husband’s support and the cost
of his care.
It is important for you to make informed decisions
based on the best available information at the time.
The information contained in this column is of a
general nature and does not constitute legal advice.
The characters in this article are fictitious.
Stella Knight
Attorney
Estate Planning & Elder Law
Wills and Trusts
Power of Attorney & Living Wills
Asset Protection
Guardianships for Adults & Children
Probate
Licensed in North Carolina
751 Body Rd, Hertford NC 27944
(252)264-3600
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