Estate Planning for the House Bound

People who are house bound due to age, illness or disability are often either unable or are severely limited in being able to go to outside appointments and may be deterred or prevented from doing estate planning. This naturally leads to procrastination during which time the person may either die or lose their cognitive decision making capacity. All of this lost time and opportunity may ultimately result in no or inadequate estate planning in place when the person dies or becomes unable to manage their affairs. Let us discuss some available options in such a circumstance.

First, a home bound individual can still with assistance arrange for a home visit or a remote / virtual consultation using the Internet to meet with an attorney or with financial advisor online, as relevant. A remote appointment is less expensive (no travel time for the professional) but still requires some technical assistance and equipment to set up.

Now under California’s Supported Decision-Making law, the person can involve a trusted individual as a supporter to assist them in understanding and implementing their options and in reviewing documents at home. Draft documents can be mailed (or emailed) for review at home, and final documents can be signed at home using a traveling notary public and, in the case of a will signing, involving two disinterested person (e.g., friends or neighbors) to witness the at home will signing.

Second, an elderly or disabled person who still has sufficient cognitive capacity can delegate estate planning authority to a trusted friend or to a family member to act as their agent under a power of attorney. That is, an agent using delegated authority may take actions to keep the principal’s estate (assets) out of a court proceeding, such as probate or a conservatorship, and that achieves intended estate planning objectives.

Ideally, the estate planning agent, however, should not be someone with a personal self-interest in the outcome. Such a self-interest is an actual “self-dealing” conflict of interest when the agent uses his or her delegated authority to transfer assets to the agent, or the agent’s spouse or children. However, even an actual conflict of interest can be expressly waived in the power of attorney so as to permit the agent to engage in self-dealing. Naturally, it is preferable whenever possible to avoid this conflict as allegations of undue influence can result in litigation.

For example, consider a terminally ill person with cancer who is confined to bed. He or she appoints her trusted friend as her agent with delegated authority both to establish and to name certain persons as death beneficiaries on the ill person’s financial accounts, i.e., to create Pay on Death (“POD”) bank accounts and Transfer on Death (“TOD”) brokerage accounts, on existing retirement accounts and on life insurance policies.

Moreover, the agent can also be authorized to establish a trust that names certain intended beneficiaries and to transfer assets into the trust, typically real property, business interests and assets that for one reason or another need to be held in further trust, e.g., inheritances for minors or for incapacitated persons.

The power of attorney approach presumes that the elderly or disabled person was first able to obtain legal counsel to draft a power of attorney that delegated such estate planning authority. What is advantageous with this approach is that it requires limited direct involvement: to consult with an attorney to draft the power of attorney. A traveling notary public can go to the person’s home to notarize the document’s signing.

No one plans to fail, but people do fail to plan. Procrastination is a big reason why people fail to plan. Homebound individuals are even more at risk of procrastination given their circumstances. By involving trusted friends or family members they can still be able to accomplish their necessary estate planning.

The foregoing brief discussion is not legal advice. Anyone confronting such issues should seek a competent trusts and estates attorney. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.