Sometimes I get phone calls asking about what to do when someone is dying. Typically, the person is in the hospital, or a nursing home, or hospice, and it’s apparent that they are near the end. Family members want to meet with me and discuss what comes next.
What you can do, what you should do, ‘pre-death’ as it were is going to depend on several factors. First, if the person is both conscious and competent, you might want to do some last minute estate planning, if it is needed. I’ve seen cases where there was an existing will but it left everything to the spouse; however, the spouse unexpectedly predeceased the person who is in the hospital. Or, frequently, the person has no will; they are intestate. In which case the state sets out who gets what.
If the person is able to communicate, and if the person desires it, you may be able to draft a will; the lawyer is going to have to make certain, though that this is what the person actually wants, that they are not being strong-armed by a family member, that this isn’t the drugs or the pain doing the talking. Nonetheless, it can be done. Likewise, sometimes it can be useful to execute a power of attorney and/or a health care surrogacy, when it is apparent that the person is currently competent but is at risk of going downhill and becoming incompetent or uncommunicative in the near future. Once again, this is something that needs to be evaluated by the lawyer; while a last minute estate plan is probably better than none, last minute estate plans could be seen as suspect, as the result of “undue influence”, depending on the exact circumstances. Not always; it is going to depend very much upon the facts, but this is why you need to talk to a lawyer.
All of this, however, is assuming that the person is awake, alert, able to communicate, and can express their wishes. Sometimes people are outright comatose, unconscious, or simply so far gone as not to be competent to make or execute documents. If that’s the case, frankly, there is not much anyone can do except to wait until the person passes, short of bringing a guardianship action. If there are certain documents, particularly powers of attorney and health care surrogacies in place, then those documents may be able to be used to smooth certain things over; making medical decisions, paying bills, filing tax returns and such, but if there aren’t any documents and the person is unable to execute documents, then pretty much all you can do is gather what documents you can, and wait until the person dies, and then move to open a probate.
Frankly, a lot of this is easily avoided; I do realize that a lot of people don’t like to think about death and are reluctant to make a will or make plans for their own illness and decline; but it is a lot easier on the family if you’ve got these documents in place ahead of time. I can, and have, done last minute estate planning, but it is a lot easier to do this while no one is under pressure.
If you have a parent or other loved one in or around The Villages, Florida, who is in the last extreme, feel free to contact me regarding can and should be done; I may be able to be of assistance. But really, the better plan is to try to have this stuff in place while you are well. This is absolutely critical to make plans ahead of time. If you are in Marion, Lake, or Sumter County Florida, and have questions regarding estate planning, wills, powers of attorney, health care surrogacies or living wills, please contact my office. It is a lot smarter to have this stuff done before you need it.
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