SIX YEARS AGO, a colleague came into my office, looking concerned. He asked if I could speak with a client who was suffering from dementia. At the time, I was the Army’s attorney in charge of legal assistance at Fort Hood, Texas. One of the services we provided was drafting wills for servicemembers, veterans and their families.
For our legal office, my policy was that I’d always be the person to deliver bad news. Every attorney who has practiced estate planning long enough has experienced what I was about to go through. But I’ve come to realize that no one is truly prepared for that first time. I certainly wasn’t.
As I walked in and greeted the client, nothing seemed amiss. He was elderly and genial. When I asked him whether he owned his home and where he lived, reasonable questions to ascertain whether he was mentally competent to execute a will, I realized something was off. We sat awkwardly for a few minutes before the gentleman told me he couldn’t remember.
Next came the tough conversation: informing him and his family, who had driven him to the appointment, that they wouldn’t be able to get a will, health care power of attorney and living will because he lacked the necessary mental ability. I’ll never forget that my first such conversation involved a kind, elderly man who wore a subtle pin on his sport coat that indicated he’d received the Silver Star for heroism in combat. That only made the conversation harder. He had sacrificed so much for the country, and yet the rules of my profession forbade me from helping. Instead, I felt utterly helpless.
This hero left my office confused and sad. I’ve thought of him and our conversation often in the years since. A few weeks ago, I participated in an Army Reserve weekend drill, which included writing wills for retirees. It had been several years since I last drafted a will. But on my first day doing so, I experienced the same thing for a second time: another very hard conversation held too late with an elderly veteran.
Candidly, I had put off writing my own will for far too long, even though I’d thought often about the need to get one. After seeing this second client suffering from dementia, I decided it was time to act. When I left the office, I immediately drafted my own while having lunch. Then, I executed it with our Army Reserve paralegals. Frankly, there was no excuse for me not to have a will, especially now that I have kids and need to address their guardianship.
Not everyone needs a will. It may be unnecessary depending on your state’s intestacy laws and the type of assets you have. Still, many people without a will, health care power of attorney and living will need these crucial documents, and getting them will ease the burden on their families.
I put off getting a will for the same reasons many others do: None of us likes to think about our own mortality. My advice: Do it anyway. You’ll no longer have to expend mental energy worrying about it—and your family will thank you.
John Goodell is general counsel for the Texas Veterans Commission. He has spent much of his career advocating for military and veterans on tax, estate planning and retirement issues. His biggest passion is spending time with his wife and kids. Follow John on Twitter @HighGroundPlan and check out his earlier articles.
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Important reminder as to the urgency of a properly updated will.
My step daughter-in-law(I will call her Barb) had been estranged from her biological father(I will call him Bob) because he fought tooth and nail against paying child support when the marriage failed while she was very young. Bob was not much interested in the welfare of his only child with very sporadic interaction through all her growing up years even though they lived only a few miles apart. Naturally, Barb had developed a layer of disregard for him since he deserted her in so many ways.
Fast forward; Barb is now married with three young sons, it occurs to Bob that perhaps his policy of keeping arms length was detrimental to all of them. He starts making inquiries into rebuilding their relationship and knowing his grandsons since life without them had been quite lonely as the years went by. Barb approached very slowly and cautiously but they were making progress.
Then unexpectedly, Bob passed away in his early 60’s. It was a shock to all, but even more shocking was that his will specifically excluded Barb, his only child from inheritance. A decision he made when hearts were hard, but he neglected to update when hearts were thawing. Barb is now out of a seven figure inheritance. Attorney said it is iron clad, with no recourse.
Don’t let petty grievances or think you have time to get your affairs in order some other day. None of knows how today or tomorrow will unfold.
John, Thank you for your service. This is a very important article. My wife and I ended up being financial and medical POAs for both our parents, and my wife’s aunts. Getting your parents to write POAs, review their wills, and discuss their finances, and their concerns and wishes for medical treatment is so important. It can’t be repeated enough. We found that many parents write their wills when their children are young. When they get older, their original choice of executor could be someone significantly older and no longer appropriate. We had to update My mom’s when she was in the hospital awaiting removal of a brain tumor. Luckily we knew a wonderful attorney (they exist) who drove into Philadelphia over a weekend to interview my mom, update the will and POAs, and came back to have it signed and notarized prior to surgery. The day before brain surgery is not the time you want to be updating wills and POAs.
Thank you, Rick
Important article!
Isn’t it true that only a court can determine testamentary capacity? If so, then I think an attorney has an obligation to point this out to clients who may not agree with his or her opinion.
Excellent reminder indeed. I’ve written a piece that is in Jonathan’s queue about a reminder I recently had. I feel like I need to be telling people I know to get a will if they don’t have one already.
Excellent reminder, John. And I admire your policy that, if there was bad news to give, you’d do that personally. Leaders lead by example.
Thank you, Andrew
Many thanks for serving our country…great article.