I read that 55% of people die without a last will and testament.  That statistic doesn’t surprise me at all.  I think Wills are the subject of much procrastination or fear or both.

People say I’ll get a Will, then put it off and forget about it.  Some people associate a Will and death so closely it’s as if they believe that they’ll sign their Will on Tuesday and die on Wednesday.

To tell the truth, though, what surprises me even more is that people do not have powers of attorney and living wills.  A power of attorney and living will permit someone else to make decisions for you.

Most people fail to understand that no one else can make decisions for them unless they have granted another person authority to make decisions for them.  Doctors and hospitals may listen to family members—of course, they may not—but no one is going to listen to another person about financial decisions.

If your spouse became disabled, you, as her husband, would not be able to make financial decisions for her unless your wife had granted you a power of attorney.  If there were a dispute concerning your healthcare—for instance, some family members were saying one thing and other family members were saying something else—then doctors may refuse to listen to the family if you have failed to grant someone the authority to make healthcare decisions for you.

I strongly recommend that clients grant someone else the authority to make decisions for them by signing powers of attorney and living wills in favor of a family member.  I recommend this even more than I recommend someone have a Will.  A Will, I tell my clients, is for someone else, because you are no longer with us.  It’s an important document, but not nearly as important as a power of attorney and living will.

If you do not have a power of attorney and living will, then there may come a time when you need a guardian.  A guardian is a person who is appointed by the court to make decisions for you.

I have filed hundreds of guardianship actions over the course of my career, and I have probably been appointed a hundred times by a court to be involved in guardianship matters in one capacity or another.  And I can tell you, based upon my vast experience, that a guardianship is something you should avoid.

While guardianship proceedings are necessary, the proceedings are only necessary, in most instances, because people fail to plan.  In order for someone to become your guardian, he will have to outlay about $4,000 to $6,000.  A guardianship proceeding involves, at a minimum, two doctors and two lawyers and the court.  In the end, you will be responsible to pay these bills, not the person seeking to be appointed your guardian.

Once someone is appointed as your guardian, he still may have to return to court to ask permission to sell your house or engage in other financial transactions or planning.  These return trips will cost your estate even more money.

From start to finish, the appointment of a guardian may take three to four months.  If your situation requires immediate attention—for instance, if you are in a hospital and require immediate medical attention—then someone may need to be appointed your special medical guardian, then seek appointment as a full guardian.  All of this, of course, adds to the expense of the guardianship.

While you may never need a guardian, most people do not, you never know.  The need for a guardian does arise with some frequency.  It is not a rare event.

My experience with guardianships and with planning for people in need of care tells me that the most important, most fundamental documents a client can have are a living will and a power of attorney.