A Public Lesson on a Common Estate Planning Mistake

Filed under Estate Planning.

Estate planning is difficult to talk about. It forces us to face our own mortality while answering difficult questions about our health, friends, and family. Despite this discomfort, we eventually ask all of our clients if they have thought about developing an estate plan. Occasionally, a client will say, “I don’t have enough assets to justify an estate plan,” or “I don’t have a family, so why do I need one?” However, a comprehensive estate plan doesn’t simply address the disposition of assets at death, it takes into account your well-being during life.

For instance, everyone should consider a Directive to Physicians (i.e., a “Living Will”) as part of his or her estate plan. A Living Will enables you to communicate your wishes regarding end-of-life medical care if you are unable to. In particular, you can establish your preferences regarding artificial hydration and nutrition if you are diagnosed with a permanent unconscious condition. As you can imagine, it would be very difficult for a family member to decide whether to “pull the plug” if you became comatose after a serious injury.

Conversely, a Living Will allows you to prevent disinterested individuals from making health care decisions on your behalf. This point is underscored by the recent injury to professional basketball player, Lamar Odom. Mr. Odom, a two-time NBA champion and estranged husband of reality TV star Khloe Kardashian, was admitted into a hospital after being found unconscious. After suffering multiple strokes, Mr. Odom was put on life support. Unfortunately, Mr. Odom never signed a Living Will. Therefore, despite the fact that Mr. Odom and Mrs. Kardashian are in the process of finalizing their divorce, Mrs. Kardashian has the authority and autonomy to make health care decisions on his behalf. Even if Mr. Odom has complete trust in his estranged wife, it is reasonable to believe that Mr. Odom’s incomplete estate plan could lead to conflict between his family and his estranged wife, thus adding additional stress and anxiety to an already tragic situation.

Several articles report that Mrs. Kardashian “is lost” during this difficult time; fortunately, there are lessons to be learned and we can all prepare ourselves for the unexpected.