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Whether you want to think about it or not, there comes a time in everyone’s life when it is too late to complete an estate plan. Waiting until the last minute, or until a significant life event occurs, can lead to complications and potential limitations. Being an attorney who handles end-of-life directives, I see this all too often.  So, let us explore some of these scenarios and the simple ways to avoid them.

The obvious answer to the question “when is it too late to implement an estate plan?” is if you die before getting it done.  I have yet to meet the person who can predict the future and when they will die.  I understand that life is busy, stressful, and most people do not want to talk about their demise, however; if you are an adult with a family, sometimes you need to have tough conversations.  A great way to think about it is this: if you do not want to talk to an attorney about it while you are alive, your family will have to do it after you pass, and it won’t be a short conversation.  The Illinois probate process guarantees the distribution of your assets will be complicated and expensive.  After having sat on the other side of the table from family going through the probate court process, I can tell you from experience that your family will thank you if you help them avoid probate court.

A second scenario that you cannot plan for are tragic accidents.  If anything happens to you that renders you mentally unable to make decisions or care for yourself, and you don’t have a plan in place for that circumstance, you leave it up to a probate court judge to order someone to take care of you and your affairs.  If you prefer to control your destiny in the event of a tragic accident, you must put powers of attorney in place.

A third scenario that many do not consider, and I unfortunately witness all too often, is when people lose the mental capacity to execute an estate plan.  As we age, most of us lose our mental and/or physical capacities to one extent or another.  Worst case scenario, you lose the capability to make decisions or care for yourself.  In order to sign valid, legally binding estate planning documents, you must have mental capacity. All clients who come to me must be able to answer basic questions demonstrating they know what they are doing. Unfortunately, if you are unable to answer some basic questions about what you own and who are your relatives, the attorney that you work with will decline to prepare estate planning documents for you to sign.  The courts are filled with cases filed by family members claiming their deceased relative was not of sound mind when they signed or changed their estate plan.  If you have wishes that you want to be honored, it is best to get it done before it is too late.

What happens if you are alive, but lost your capacity to sign valid a healthcare power of attorney (POAH) or power of attorney for property (POAP)?  In this case, family members have limited options.  Without valid signed documents, families are stuck with applying for guardianship with the local probate court to be appointed a legal guardian, or conservator, to make decisions on your behalf for your healthcare matters and to handle your money for you.  There are laws that set forth who has preference for being named guardian, but unfortunately, you end up relying on someone to volunteer.  The court cannot force a family member to care for you if the person is unwilling.  If there are no family members available who volunteer to act as your legal guardian, then a doctor may make your healthcare decisions and you could become a ward of the state.

Legal guardians must report back to the probate court judge who appoints them every year (sometimes longer, depending on the circumstances) to give the judge an update on your health and financial status.  Once you pass away, in the absence of a valid estate plan, your estate/belongings and their distribution to your family must go through the probate court process.  This can be a financial strain on your family, as the estate must stay open for a minimum of six months (with no distributions made in the interim) and can go on for years depending on the size of the estate and whether there is internal fighting.

It’s important to understand that you can prepare a plan for your estate at any age.  Even if you haven’t finalized a comprehensive estate plan, getting some basic documents in place is better than no action at all.  An easy goal to set for yourself is to sign powers of attorney and prevent the probate of your estate.  We understand it may feel like you are setting things in stone, but a good plan will grow with you.  You may always make changes to fit your changing needs.  Don’t wait until it is too late. Keep control over your body and assets while you are best able to do it; now.