A report published earlier this year shows that the statistics are worse than I had expected, with respect to the percentage of older adults who do not have a sufficient estate plan in place to protect themselves and their families. In “Leaving a Legacy: A Lasting Gift to Loved Ones”, by Merrill Lynch (published in 2019), Merrill Lynch reports on a study it conducted along with Age Wave. This study included a survey in September 2018 of U.S. adults age 55 and over, as well as focus groups conducted earlier. The findings are somewhat startling with respect to the lack of proper planning for many older adults as they demonstrate that a significant percentage of older adults have not put in place appropriate plans, though most would say such planning is important.

The report reveals:

* It is estimated that over the next 30 years, approximately $30 trillion will be passed down from older Americans to subsequent generations.

* 9 in 10 older adults are open to discussing their end-of-life preferences with family and friends.

* Considerations relating to dementia and pain cause older adults the most unease when thinking about end-of-life matters.Two-thirds reported that they did not want to become a burden on loved ones.51% reported that they did not want to receive unwanted medical treatments (along these lines, just 6% of respondents said that a characteristic of a “good death” was receiving all medical treatments and interventions possible).

* 67% of respondents agree that having their affairs in order means that they have a will or trust that directs how their estate should be distributed after their death.

* 63% of people agreed that they also needed an advance directive for healthcare or similar document to detail their wishes for end of life care.

* 49% said that discussions with their loved ones about their end of life wishes were important.

* 52% of respondents said that dying without their affairs in order was seen as irresponsible.

These respondents talk a good talk, according to the survey, but when it comes to actual implementation of these ideas, we see another story. The report reveals that only about half have a will by age 50, and more than half say that their failure to plan could leave behind a mess for their families to deal with.

In another report from Merrill Lynch (the “Finances in Retirement: New Challenges, New Solutions” report from 2019), the survey found that the majority of those surveyed had not had in-depth discussions on net worth, long-term care, or wills and inheritance with their parents or adult children. And 28% of those surveyed had not even had these discussions with their spouse!

Despite the professed knowledge that they know what needs to be done, the study reveals that few people actually have complete end-of-life plans. Only 55% of adults 55+ had a Will (but an estimated 23% of those were out of date, and that's problematic too!). Fewer people had an advance directive for healthcare (41% had this). And fewer had in place a power of attorney (33% had this). The report notes that only 18% of respondents had all three of these foundational and essential documents in place. This last statistic is worth repeating: just 18% of those 55 and older have the recommended essentials of a will, a healthcare directive, and a durable power of attorney. These are the three foundational planning tools in Georgia, and every adult ought to have these in place to ensure that their wishes are recorded and followed, and that their family is protected.

This scares me because I've seen what happens when people become incapacitated without having done any planning. With no one in place to legally manage the person's finances and personal affairs, a conservatorship proceeding is likely necessary. And that's expensive and time consuming, and the conservator appointed by the court may not be who the incapacitated person would have chosen to manage their finances. Without an advance directive for healthcare appointing a healthcare agent, guardianship proceedings may be necessary. Again, an expensive and time-consuming process that may result in a less than desired outcome. And, of course, when dying without a will in place, the person would not necessarily have their wishes followed with respect to distribution of their estate as a default plan under state law (called intestate succession) is then imposed on the estate for those who failed to do their own planning.

We get far too many calls from people who have had a parent become incapacitated due to advanced dementia or other medical problems, looking to see what type of estate planning their parent can then do. Many times, the news is not good, and we break the news that because the parent does not have capacity to execute planning documents, the family may now need to go through the guardianship and conservatorship proceedings in the probate court. These issues can be avoided by people completing their own plan, while they have capacity to do so, capturing their wishes for how their affairs should be handled if they are incapacitated, and by who, and then setting forth their plan for distribution of their assets when they die.

The good news is this: Estate planning doesn't have to be hard, and we can help.

If you have parents who are aging, it may be wise to speak with them about the status of their planning. We've got information on the three foundational planning documents used in Georgia, together with some tips on how to talk with your parents about estate planning. I think you'll find it helpful.

Of course, if we can be of help, please contact us.

Joel Beck

The Beck Law Firm, LLC

P.S. – Need more info. about estate planning in Georgia, for either yourself or your parents? We've got you covered. Just go here and request free information, no strings attached.

Photo above by Jonathan Petersson via Unsplash.