By Henry M. Ongeri & Steven E. Antolak*
Right upfront, let’s face it: we all like to put off unpleasant or uncomfortable thoughts or conversations. It is not easy to confront the reality of our own disability, weakness or mortality. So we put it on the back burner. However, the reality remains that burying our heads in the sand hardly makes the unpleasant or uncomfortable issues go away.
Immigrant and first-generation immigrant families have unique circumstances that underscore the importance of advance planning and deliberative decision-making. Many first-generation immigrants (especially from African countries) still have and maintain a strong bond with their homelands. Whether it is keeping in touch with family, owning property or businesses, such immigrants have a “dual existence.” On the other hand, many do not have immediate family members in the West where they live and raise families. This actuality tends to rear its head at the most unlikely and unexpected times: disputes, disability, illness or sudden death.
To illustrate, one can imagine these purely hypothetical scenarios. First, a young immigrant family is rendered desolate by the sudden disability of a father, the main breadwinner. A rare and debilitating illness leaves him unable to speak or walk, cutting short a promising career in healthcare. He had not imagined (let alone made plans for) the day he would no longer work. He was only in his early thirties. In yet another, a graduate student at a state university is involved in a tragic road accident. He is airlifted to a local hospital where he lies in a coma for months. Having no immediate family members in the country, the student’s classmates and friends are forced into the distressing situation of speculating what the student’s end-of-life choices would have been. Well-crafted healthcare directives would have saved the day.
Another situation one can think of is burial for those who pass on in the diaspora. For decades, particularly among the African immigrant communities in the United States, this was seldom an issue. In the unfortunate event of a death amongst them, relatives and friends gathered, raised the necessary resources and transported the remains to their respective homelands. But as immigrant families’ numbers swell and prosper and possibly become more entrenched in their local communities, shipping remains back to Africa has come under increasing scrutiny. A growing number of children (born and raised in the diaspora with only a tenuous connection to their parents’ ancestral home lands) have started to question the practicality of this practice. As one teenage boy once asked me: why bury my parents in some distant land where we cannot visit them? I had no answer.
Finally, in a more positive scenario, an immigrant family has built considerable wealth through an import-export business. They have acquired assets and made investments spanning continents, as most diaspora want to. The issue of allocation and ownership of such assets should be clarified, preferably in enforceable legal documents. This is more critical for families from cultures where communal ownership of property is the norm. Otherwise, the risk of confrontation and endless legal battles looms large.
Some basic documents that every diaspora family should have include (but are not limited to): living wills and living trusts; power of attorney (The legal authority to make decisions or act for another person); estate plan (you, rather than operation of State law, gets to determine inheritance of your assets; you decide who will manage your estate; you, not the court, select a guardian for your children and you can provide for the orderly continuance or sale of a family business.)
At the risk of oversimplifying an otherwise very complex subject, it bears repeating that a failure to plan is an open invitation to the courts and lawyers to direct what is an otherwise intensely personal matter. Why would anyone want that? The unique experiences and circumstances of many diaspora families make “Legacy Planning”even more pertinent.
The AfricaPaper: *Attorneys at law and hosts of the “Life and Law Seminar Series” at ANTOLAK & ONGERI, The Transatlantic Law Firm, PLLC
Disclaimer: The information presented here is for informational purposes only. It is neither, nor is it intended to, constitute legal advice. No attorney-client relationship is created with ANTOLAK & ONGERI. If you have a specific question regarding the matters herein, you are advised to seek professional advice.