While we have talked about many aspects of estate planning in these blogs that include but are not limited to wealth succession, incapacity planning, asset protection, tax avoidance, and more, there are new estate planning issues that emerge periodically. A new cutting edge area of estate planning that is in its infancy involves “Advance Driving Directives.” While a health care directive appoints an agent to make health care decisions in the event of mental or physical incapacity, there are other conditions that while not incapacitating can make particular activities unsafe. One of the most challenging issues for elderly individuals and their family to discuss concerns when it is time to surrender the car keys and stop driving.
The subject of whether it is safe to continue driving is one that is anxiety ridden for both elderly drivers and their loved ones because driving is such a fundamental part of maintaining one’s independence. Because many young people mark their adulthood by gaining this right which permits them to exercise autonomy from their parents, it is predictable that seniors are hesitant to surrender their driving privileges. However, an advance driving directive provides an estate planning tool that can ease the burden of discussing such issues.
Essentially, this relatively new estate planning tool allows the creator to designate the person they wish to initiate the discussion about whether it is still safe to drive at the appropriate time. Unlike an advance directive for healthcare, the document does not appoint an agent to make a binding decision, but rather indicates who should broach the topic and may specify the circumstances that would necessitate such a discussion. The estate planning value of an advance driving directive touches many areas of estate planning that include:
• Preventing harm or injury related to advanced age
• Protecting the senior from liability for a collision that causes property damage, personal injury and death
• Preserving the assets in the estate for successors rather than judgment creditors in a personal injury action
This document makes it easier for younger family members to broach the “stop driving decision” because they have been expressly designated to do so by the elderly loved one. Further, recent research suggests that seniors support the concept of family members being involved in deciding when it is no longer safe to drive. A study published in the American Society of Geriatrics revealed that almost seventy percent of elderly drivers endorsed the idea of family members being involved in the decision of when an aging person’s driver’s license should be revoked.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
While this is a difficult topic to discuss, it may be much easier to confront initially when a senior is still capable of driving and merely planning for the future than trying to tackle the subject for the first time when driving is no longer a safe option. If you have questions or concerns about estate planning or probate issues, our New Mexico Estate Planning Attorneys at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.