You're never too young and never too healthy for an Asset Protection and Estate Plan

By Randall K. Edwards

Jim and Heather (I’ve changed their names and a some details of this story in order to protect privacy) were a young couple, newly married.  Heather was pregnant with her first child, and they were both thrilled to be looking forward to a family.  Heather, tired with the stress of pregnancy, the demands of home and trying to stay on top of a new job, was often exhausted – so exhausted, in fact, that her OB/GYN prescribed bed rest.  Unfortunately, instead of making things better, Heather’s health took a terrible turn for the worst as she formed a blood clot in her leg which broke free, traveled to her brain and caused a stroke.  The first warning that Jim and Heather had that anything was wrong was when Heather passed out and Jim couldn’t revive her.  After a frantic ambulance ride to the emergency room and some intense hours of tests and medications, Jim was told by Heather’s doctor that it appeared that Heather had entered a “coma-like” state and that her prognosis was grim.  Even in the unlikely event that Heather were to somehow regain consciousness, the doctor told Jim, it was probable that she had suffered irreparable brain damage.

Jim found himself in an awful situation.  During the first weeks of his wife’s continued stay at the hospital, he couldn’t even get his wife’s medical records, nor could he get all of the information he wanted about Heather’s medical situation because without a proper medical directive or power of attorney, the medical providers were limited under the HIPAA laws as to what they could and could not share with a non-patient—even the spouse of a patient in a coma.  As mentioned, Jim had been told that the chances that Heather would ever regain consciousness were extremely small, and he suddenly found himself face to face with terrible questions no one wants to face – especially a young husband and expectant father:  How could he find out exactly what happened to his wife?  Could he get a look at her medical records without a court order allowing him to do so?  Should he “pull the plug?”  Did he even have the legal right to do so?  If Heather died, should he order an autopsy?  Could he order an autopsy?  Where could he turn for help?  What could he do?

Jim and Heather figured that they had years before they would ever have to worry about an estate and asset protection plan.  They were, after all, just starting out.  They had no money to speak of—just hopes and dreams of starting a family, pursuing Jim’s business and buying a home.  They didn’t have anything as exotic as a trust or even a will.  They had no general durable power of attorney, no living will, no written medical directives and no contingency plans in the event something went wrong.  They had years to live and a lot of money to make before they needed to worry about making hard decisions and divvying up their assets to their family, friends and foundations.  They were, and are—just like everyone else—hoping for the best and not really considering the worst.  Unfortunately, the worst had happened, and a lot of hard decisions and problems now had to be faced.

I tell this cautionary tale because everyone – including you – needs to implement an asset protection and estate plan today.  You’ll obviously need to sit with a professional and figure out exactly what is appropriate for your circumstances.  If, like Jim and Heather, you’re just starting out, you’ll have a much simpler (and much cheaper) plan than if you’re a few years into your career, with some money in the bank, some equity in your home, some success in your work and some investments to take care of.

Of utmost importance, however, are the following:

A MEDICAL POWER OF ATTORNEY.  This is a document that puts the authority for making medical decisions in the hands of someone you trust, in the event that you are unable to make those decisions for yourself, such as a coma or other loss of ability to make adequate medical decisions.  It’s better to leave these decisions in the hands of your loved ones rather that the hands of someone else, such as a doctor or hospital, who can only guess as to your wants and needs in the absence of decision-making authority from you.

A LIVING WILL.  This is a relatively simple legal document that tells your loved ones and your doctors what are your wishes in the event that you are in a situation in which you are terminally ill and cannot make decisions for yourself.  You can designate that heroic measures be taken, or not taken, to preserve your life, whether you will be given nutrition, and whether you wish to have your life sustained in that state. You can specify that your loved ones and your medical providers may legally rely on that document as an expression of your desires.

A DURABLE POWER OF ATTORNEY.  This is a document that allows someone else to carry on your business, handle your finances and otherwise undertake the day-to-day needs of your life in the event that you are unable to do so.  Your designee can write checks in your name, pay your bills, carry on your corporate business and generally act in your name while you cannot.

A TESTAMENTARY DOCUMENT (WILL OR TRUST).  Space doesn’t permit me to review all of the alternatives for testamentary documents here – “testamentary” meaning the designation of what is to be done with your property upon your death.  Depending on your circumstances, you may have a revocable trust, an irrevocable trust, a general will, a pour-over will, a QTIP trust, and a host of other structures – or, for that matter, all of the above in various combinations.  You’ll need to speak with a qualified estate, financial and asset protection planner in order to determine what’s best for you.  The point here is that you need SOMETHING now.  If you don’t designate what’s to be done with your assets and otherwise take care of your business in the eventuality of your death – including the designation of a guardian for your minor children – the state will do it for you.  That’s a prospect no one should have to face.

AN ASSET PROTECTION AND TAX PLAN.  Just as there are a myriad of tools for planning for the distribution of your assets upon your death, there are a lot of tools for making sure that there are assets to distribute.  They include insurance, trusts, retirement plans, corporations, limited liability companies, partnerships, including limited partnerships, loans, equity planning and other options.  The point to remember here is that you have assets that need protection – even if the only asset you have right now is your talent and a bright future.  You need to safeguard those assets, and plan for augmenting them with a minimum of risk.  Don’t fall victim to the idea that you don’t have enough to protect.  You do, even if it’s not much.  In fact, it’s those folks who have fewer assets that need more desperately to make sure that they’re not in jeopardy.  There’s no reason not to figure out a plan to hang onto what you’ve worked hard to get.

Volumes have been written about estate, financial and asset protection planning, and the various tools that exist for each individual situation.  The question of what is right for any particular situation depends on a variety of factors – each unique to each individual’s situation. 

Regardless of your particular circumstances, however, it is important to understand this: Do something now.  Right now.  Today.  You’re not too young, and you’re not too healthy to put off planning for your future – even a future you don’t necessarily want to face right now.

Randall K. Edwards practices law in Utah, Nevada, California and Arizona.