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Normalizing Death Conversations with Estate Planning and Advance Directives

Updated: Jun 5

Death is inevitable which promises that the conversation will eventually come up. However, it's time that we control the narrative through estate planning and advance directives to bring comfort to a place of grief.


Image of estate planning, living will, and healthcare power of attorney documents.

Photo credit: ID 210010354 © Zimmytws | Dreamstime.com


Posted on May 30, 2024


There are many things from a young age we are told not to talk about. We were often informed that it is “grown folks” business, and we should stay in the place of a child. Only if the traumas we’ve inherited from our families carried the same beliefs. We have now grown up to learn that these are the very conversations that we need to have in order to prepare for the rainy days that awaited us.


For many families the stigma still carries weight as to what conversations are allowed to exist and which conversations are not. I hope this particular blog inspires a different story to be told in our families, maybe even a heroic one at that. 


My first experience with death occurred on May 18, 2002. I was nine years old and what should have been my cousin’s enormous, big eight only lasted 2 days out of 365 days he should have been given. It wasn’t just learning that family can die but kids can too, that prematurely created the foundation for the relationship I would later have with death. I don’t recall there ever being an explanation of “what death is” or “why do people die”, it was seen as another thing that “just happens” to us. That left more than enough room for my own interpretation at nine. 


It felt like weeks but were actually days of being left home with my sister as my parents went to my cousin’s house night after night. It never really made sense to me why they were always there, but I would later learn in my adulthood that’s what grieving is. 


The day I learned of his passing, I remember calling my childhood best friend at the time and telling her what happened. I don’t remember her entire response but the part that lives rent free in my head was “now don’t come to school tomorrow with all that crying”. I’m sure many of you at this point are surprised as to why she would say such a thing, but why wouldn’t she? She already experienced her fair share of death at ten years old with her older cousin being recently murdered not that long ago. Having the awareness that I have now, I’m sure she didn’t know better because the same conversations that didn’t exist in my home didn’t exist in hers either. 


While growing up, death would no longer be a stranger in my life but a very familiar presence that would continue to take my peers and their family. You would think after so many losses in a community, the invitation to give death a definition aside from lived experience would arise but not in the 90s or the 2000s. Unfortunately, in my community the majority of the deaths were by violence, so the shock factor preceded the ability to plan for an untimely death for many. Thankfully times have changed to provide us with the resources and spaces to discuss difficult topics like death. However, just like any other advancement risen from oppression, we still have more work to do.


In a game of two truths and a lie, I’d pick

Image of a black elder man talking with a black middle-aged man
  • Death does not discriminate 

  • Death is inevitable

  • Death is not something you can prepare for


Are you able to identify the lie? If not, please continue reading because if there’s anyone who needs this information the most it’s you. Truthfully, we all need it. It wasn’t until I started working in a nursing facility as a Social Worker, I learned that we could control part of the narrative relating to our own deaths (whether timely or untimely). Part of my role as a Social Worker is to find out from residents and/or their family if they have an advance directive upon their admission to the facility. I’m often met with:

“I don’t know what that is”

“I don’t need that. I don’t have anything anyway”

“Yeah, I’m his/her Power of Attorney but it’s not in writing”

“Yeah, I have a will somewhere. I’m not sure where it is though”

This is how I know the conversations are not happening at home or with our family members. Whether you are absent from the mind or the body, leaving your loved ones with the responsibility of your care without anything in place is a different type of trauma within itself. The fear behind conversations of death or losing the ability to make decisions for yourself, does not stop the reality of it from happening. I have witnessed family disputes occur from estranged relationships when a resident has multiple adult children, who all believe they know what’s best for their mother, but all their opinions differ. I have even seen families struggle with grieving while scrambling to plan a funeral minutes after being told their loved one died but they need to identify a funeral home to pick up the body because the nursing home will only allow the body to remain in the facility for 4 hours before it’s called to be picked up by the state’s anatomy board. For those of you who aren’t familiar with what a state’s anatomy board is, that’s where you can find all your “John and Jane Doe” bodies after they go unclaimed for a period of time in any facility within that state. You will also find people who donate their body for research and students in the residency to learn from. 


The trauma of death is not exclusive to just the deceased but also everything else that follows after that (bills, property, dependents, etc.). Grief will always be prolonged, but it does not have to be as complex. Your reality today may not be your reality tomorrow and it’s in my hopes that you give yourself and your family the opportunity to weigh in on the “what ifs”. Here are five things I’ve learned as a Social Worker working in a nursing facility.


 

1. Create an advance directive!

Let’s start with defining an advance directive. An advance directive is a written document outlining a person’s healthcare wishes should they lose their mental capacity or become deceased. This document is to be followed as written by the Grantor in order to carry out the person’s wishes for various healthcare situations. An advance directive can be a living will, medical power of attorney, and lifesaving treatment orders such as a MOLST in Maryland or a MOST in the District of Columbia. Depending on the state you live in it will be called something different, but it serves the same purpose and can only be completed by certain medical providers.


2. Know that your Power of Attorney for Healthcare does NOT require the services of an attorney or a notary.

This is the biggest misconception of all and often stops people from creating one because they can’t afford the legal fees! In order for your advance directive to be considered a legal document it will require your signature (if you are the grantor) and the signature of two witnesses who are NOT the appointees or executors of the advance directive. If you want to create a Power of Attorney over your finances, then that will require a notary because we’re dealing with money at this point. Money makes everything more complicated even after death!


3. Your debt does not die with you. 

This is another big misconception that’s often believed. Debt creditors will continue their efforts in obtaining your debt after you have died. The way this is done is through possessing the value of the debt from the estate you left behind. Now if you die with debt and have no assets, then you can say your debt will die with you because a debt collector cannot collect what you don’t have especially if there are no other parties who share the responsibility of that debt with you. Your debt is typically not passed onto your spouse, children, or beneficiaries but there are some exceptions to that rule based on the state you live in. An executor of an estate can be subjected to paying the debt of a loved one through that estate even if they were given certain assets. As I said earlier, money complicates circumstances, so this is something to consider when co-signing on any loans with another person or sharing mutual investments like a joint account (not to be confused with an authorized user). You always want to understand your financial responsibility in an agreement before committing to it because you can end up liable for a debt you forgot about or did not even realize existed. 


4. Utilizing a trust has great benefits when considering the longevity of estate planning and generational wealth.

If you are a person with assets and have beneficiaries, please move to the front of the class. I have experienced this in my personal and professional life and have witnessed the necessity of understanding what trusts are and how to use them effectively. There are four areas that trusts fall under that you want to learn about: living trust, testamentary trust, irrevocable trust, and revocable trust. However, there are many types of trusts like a Pet Trust, Charitable Trusts, and Family Trusts to name a few. Each of these trusts serves a different purpose based on a person’s individual circumstance. This is where I would recommend seeking legal guidance from an estate attorney to ensure you choose the right trust for you. The purpose of a trust is multilayered to provide protection over your assets, assists in managing your estate, gain certain tax exemptions, and keeping any family inheritance within the family (or to whomever or whatever you choose). Having a trust can bypass probate, provide tax exemptions, secure your assets from being paid out to cover debt (because debt does not die with us!), and set your children up for wealth if done correctly. Please remember that assets are not limited to real estate and materialistic items. For entrepreneurs it can be a business, financial accounts, insurances, pensions, and in this generation even digital assets like cryptocurrency and more. 


5. Avoid going through guardianship if you do not have to.

If you come from a dysfunctional family, please don’t be shy and come to the front. We know that all families are not set up like The Brady Bunch or The Huxtables (The Cosby Show). I’ll be the first to acknowledge my family’s questionable ways. Sometimes our families resemble The Griffins (Family Guy) and The Lyons (Empire).


Due to this, when your loved one loses their capacity to make sound and critical decisions and it is documented in their medical record by a medical Physician, they cannot create an advance directive if one did not exist prior. Unfortunately, your loved one no longer has responsibility over themselves and will require guardianship through the courts. Applying for guardianship is a tedious and lengthy process that can take months before getting approved to become someone’s guardianship. Just like with any other legal matter, it is in the attorney’s due diligence to do a thorough background search to ensure all potential living relatives are given the opportunity to step up for Guardianship before the judge appoints a guardian. If the judge believes that a family member or friend is not an appropriate candidate to become a guardian, your loved one will be assigned a court appointed guardian to oversee their affairs (health and/or finances). This does not displace families from being involved in their loved one’s care but it does disqualify them from making medical and/or financial decisions for them. In order for the guardianship to be revoked the case would need to go back through the courts for a new guardian to be assigned. Guardianship is a great system for those who truly do not have any support systems in their life and need someone to advocate for their best interest. Having an advance directive in place bypasses all of this if a power of attorney, health care proxy, or health care surrogate has been identified when the grantor was in their right mind. 


There are many resources available to aid in your knowledge of this subject matter so you can make the best decision for you. We owe it to ourselves to live a full beautiful life and have that carry on in the absence of our physical being or sound mind. Life is always going to life but having a strategic plan for your future can soften some of the obstacles. Allow your loved ones grieving to be focused on healing and acceptance rather than chaos of organizing mishandled affairs.  


The information above is not to be interpreted as legal advice or used as such. This information is also subject to differ based on each state's legislation. Readers are encouraged to seek out professional assistance in obtaining legal advice for their circumstance in their state of residency.

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