Mental Health Awareness - Austin Estate Planning

Roughly one in five US adults experience a mental illness each year. Anxiety disorders are among the most common mental health conditions, affecting nearly one-third of adults at some point in their lives. While anxiety can be generalized and chronic, it can also be a normal reaction to everyday stresses, such as worrying about finances, health, and family. During Mental Health Awareness Month, people are encouraged to make positive changes that can help them feel better. Anxiety may be rooted in concerns about the future, like what will happen when you pass away or have health problems. Many questions cannot be answered. But that does not mean we have no control over the future.

Procrastination, Anxiety, and Estate Planning

Procrastination and mental health can be closely linked and lead to an increasingly self-defeating cycle. Putting off necessary actions may lead to anxiety, depression, and low self-esteem, which causes further procrastination and more negative emotions.^[1] People may procrastinate because they fear an unpleasant outcome, struggle with perfectionism, or feel overwhelmed. Occasional procrastination, like occasional anxiety, is normal. But when procrastination starts to negatively impact your life, causing you to put off important tasks, it may be time to take corrective action.

Experts recommend beating procrastination by taking on the dreaded task, even if it is just in a few small chunks at a time. They also advise getting more organized and, when necessary, seeking professional help.

About two-thirds of Americans have no estate plan.^[2] That means they have no plan in place for dealing with unexpected tragedies, including death or incapacity. Many procrastinations have no immediate or tragic consequences. But if you put off your estate plan—and tragedy strikes—it will be too late to get started.

Ways to Act Now and Address Anxiety about the Future

Contemplating death and disability does not have to be a morbid, anxiety-producing exercise. It can be a productive exercise in which unpleasant thoughts are channeled into meaningful actions. For many unanswered questions you have about the future, there is a related estate planning action you can take to achieve a greater degree of certainty. Below are some of the most common questions we all deal with and ways to take action.

What Happens When I Die?

Spiritually, this is a question best left to religion or philosophy. But materially, you can specify what happens to your money and property after you pass away using a will or revocable living trust.

A will is the most basic estate planning document that everybody should have, even if it is very simple. At a minimum, a will should name who will receive your accounts and property (your beneficiaries) and describe the distribution of your accounts and property to them. A will can do much more, though. It can also appoint guardians for minor children, provide funeral and burial instructions, describe how to handle your debts, taxes, and other legal affairs, and appoint an executor to carry out the instructions in your will.
A living trust is a trust that can hold your money and property for your benefit while you are alive and distribute them to beneficiaries upon your death or incapacity. It is often called a revocable living trust because you can revoke the trust or change its terms during your lifetime. For example, you can move accounts and property in and out of the trust, name a new trustee or co-trustee, and change the beneficiaries. At the designated time (i.e., your death or incapacity), a trustee takes over the trust and manages the accounts and property you placed in it.

What Happens if I Am Alive But Cannot Communicate?

Contemplating incapacity can be as anxiety-inducing as thinking about death. The following estate planning tools can ensure that you do not end up in legal limbo due to a mental or physical disorder that renders you unable to manage your affairs or make decisions.

A revocable living trust (described above) can be written so that it takes effect when you are incapacitated. You can define “incapacity” to specify exactly what triggers a successor trustee to take over management of the trust’s accounts and property. The trust can even lay out the procedures to follow for determining incapacity.
A financial power of attorney is the legal authority, granted by you to someone else, that allows that other person to manage your financial affairs and property without the need for court involvement. The individual granted a power of attorney can handle bank accounts, pay bills, sell property, run a business, apply for public benefits, pay taxes, make investments, and oversee insurance and retirement accounts on your behalf. They are legally required to act in your best interest.
A medical power of attorney is the healthcare equivalent of a financial power of attorney. It designates a person who is authorized to make medical and personal care decisions for you if and when you are unable to make those decisions. A medical power of attorney also gives a trusted decision maker the authority to manage your protected health information.
A HIPPA release lets designated persons access your protected health information. Your medical decision maker may already have this authority through a medical power of attorney, but others may want to be included on a HIPPA release so they can stay informed about your condition.
A living will (sometimes known as an Advance Directive) describes the types of medical treatment you do—and do not—want to receive to keep you alive, as well as your preferences for pain management and other medical decisions. The use of a ventilator, tube feeding, palliative care interventions, and resuscitation techniques can be addressed in a living will.

What Happens to My Children?

An estate plan is not just about your own peace of mind. It can also have a considerable impact on those closest to you. If you have minor children, you need to account for their needs. Several documents can help ensure that your children are taken care of.

Your will can designate a guardian for your minor children in the event that tragedy befalls both you and the child’s other legal parent. It can also set up a trust and appoint a trustee to manage accounts and property for your children’s support. Careful use of a trust and trustee for this purpose may eliminate the need for a trustee bond (paid to secure performance of the trustee’s duties) and avoid court supervision of a minor child’s inherited assets.^[3]
A minor power of attorney lets a parent delegate somebody to take care of their child for a certain period (usually up to one year, depending on state law). The named caregiver is legally permitted to make necessary decisions for the minor, such as decisions about their schooling and healthcare. The parent can give the caretaker complete or limited authority to make these decisions. A minor power of attorney—which does not create a permanent guardianship—can be used as a stopgap if a parent is incapacitated, incarcerated, out of the country, or otherwise temporarily unable to fulfill their parental duties.
A permanent guardian nomination names a permanent caregiver for a minor child. The nomination can be in a will or a separate signed document. Nominating a guardian for your minor child does not guarantee that that person will end up as their guardian. The court has the authority to appoint a guardian. Usually, they appoint the nominee unless there is a good reason not to. Having a backup guardian is recommended in case the court rejects the primary nominee, or if for some reason they are unable to serve as guardian.

Treat Yourself to Estate Planning This Mental Health Awareness Month

Rewarding yourself is a way to break out of procrastination that may be hindering your estate plan goals. And what better reward is there than taking control of your future? An estate plan that includes wills, trusts, powers of attorney, medical directives, and guardianship documents can help eliminate some of the uncertainty—and anxiety—that comes with contemplating end-of-life scenarios. You cannot cheat fate. However, you can buy yourself peace of mind with comprehensive estate planning. Nielsen Law PLLC provides family-focused estate planning in the Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us. We look forward to hearing from you.

[1] Why You Put Things Off Until the Last Minute, Mass Gen. Brigham McLean, https://www.mcleanhospital.org/essential/procrastination (last visited Apr. 7, 2023).

[2] Lorie Konish, 67% of Americans Have No Estate Plan, Survey Finds. Here’s How to Get Started on One, CNBC (Apr. 11, 2022), https://www.cnbc.com/2022/04/11/67percent-of-americans-have-no-estate-plan-heres-how-to-get-started-on-one.html.

[3] Introduction to Wills, Am. Bar Ass’n, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/an_introduction_to_wills/ (last visited Apr. 7, 2023).