Q: Why does a baby boomer need an estate plan?
A: Because accidents happen — especially to baby boomers.
Studies show that, assuming you are living a productive and healthy life, you probably feel at least 10 years younger than you really are. This is particularly true of the baby boomer generation. We have always been active and involved. We are resourceful. We try to stay fit. We are still participating in activities in which we have engaged for decades. WE ARE NOT OLD!
This has been my personal experience, but over the last few years I have had a few "incidents" that have led me to the conclusion that the song As Good As I Once Was, by Toby Keith, is pretty accurate. Recall the stanza:
I used to be hell on wheels
Back when I was a younger man
Now my body says, "You can't do this boy"
But my pride says, "Oh, yes you can"
I have bodysurfed since I was a teenager growing up in Southern California. I have traveled the world, and every time I get to the beach, I'm looking for waves to ride. Over the past several years, however, I've not done so well. Twice I led with my head and planted my face firmly in the hard sand. This led me to place my arms in front of me the next time. Bad idea. I straight-armed the sand and tore the labrum in my right shoulder, requiring surgery. Five months of intense physical therapy later, I'm good as new (well, as good as I once was …).
More recently, I was riding my bike on the bike path through downtown St. Petersburg on my way to get tickets for that night's Rays game. There is a well-designed bike path that runs parallel to the roadway. It is separated from the roadway by a 6-inch curb and it juts out at each intersection in order to slow the bike down before the intersection. This design is very effective. I stopped immediately when I was going too fast and hit the curb. I flew over the handlebars and landed squarely on top of my head. My helmet split in two and blood was flowing. I spent that night in the hospital with several stitches and a subdural hematoma. The doctor said that if I had not been wearing a helmet, he would be having a completely different conversation with my wife.
I believe these two (or three or four) incidents have something in common, and it is not my basic klutziness. You see, I've never really been that much of a klutz. Of course, when you are active, you sometimes get hurt, but I think this is more than that. It pains me to say it, but I think it has to do with the aging process, specifically reaction time. I have always thought bodysurfing and bike riding are pretty simple activities ("just like riding a bike" — right?). The reason they are so simple is that I've been doing them forever and they come very naturally to me. The problem is that both activities require your body to react to a changing environment, and as we age, our reaction times increase. We baby boomers like to think we do not age, therefore we believe our reaction times are the same as they were when we were teenagers. Failure to recognize the reality of the situation may lead to trips to the emergency room and stays in a hospital — or worse.
As a lawyer, I know many people put off developing estate plans because they think they have plenty of time to do that later. But accidents happen — especially to baby boomers, as I explained above. If you have an accident and become incapacitated, even temporarily, it is critically important that you have appointed an agent to make financial and health care decisions for you during your incapacity. The alternative is a guardianship proceeding in which a court will appoint someone to make decisions for you. This is time-consuming and expensive. In the worst case, you die. If you have not made plans designating guardians for your children (even baby boomers have dependent children) or stating how you want your estate distributed, the court will decide for you.
At the very least, you need a durable power of attorney, which appoints an agent to make financial decisions for you; a designation of health care surrogate, which appoints an agent to make health care decisions for you; and a living will, which states the kind of care you want if you are in a terminal condition or a vegetative state. You should also have a will or a living trust to designate how you want your assets distributed when you pass away.
We all believe we are "as good as we once were," but just maybe we're not. Do yourself a favor and set up an estate plan just in case you are not.
And always, always wear a helmet.