Facing the BIG Picture
March 7, 2010
We frequently urge you here on our blog to create the documents necessary to protect yourself in case of emergency, and to ensure that your family and loved ones know your wishes for health care if you are ever unable to make those decisions yourself. But a recent article on MSNBC reminds us that creating the documents isn’t always enough.
The article by Susan Brink details the final days of Bunny Olenick, 87-year-old mother and grandmother, whose massive stroke in December of 2008 threw her family into a state of confusion… in spite of the fact that she had done all the right things.
“Olenick had done all she could to give her family instructions about her death. She had spoken to her sons about her wishes, filled out an advance directive, a living will, and had named her sons as health care proxies — all legally accepted documents and procedures designed to insure that a person’s end-of-life wishes are spelled out and honored. Yet even they weren’t prepared for the many difficult questions they faced.”
The questions they faced were a surprising mixture of technical and metaphysical: Did “life-support” include temporary nasogastric tubes for nutrition?—How exactly does one define “Quality of Life?”—Was a short-term oxygen mask okay, even though a respirator was against her wishes?—And Bunny’s own heart-breaking question upon waking up in a hospital bed, “Why am I still here?”
Bunny’s story illustrates for all of us the importance not only of creating the appropriate legal documents, but also creating the time and space to talk to our loved ones about these difficult situations. Our firm can help you to create an estate plan that will protect your loved ones and guide your agents in your wishes… but the documents are only a small part of the process. Talk to your family about the process of creating your estate plan: the how and why of your important decisions. Knowing why you made the choices you did will help your family accept your decisions and follow your wishes when the difficult metaphysical questions come up.
The Question of Competence
February 15, 2010
One of the things estate planning attorneys have to deal with in their line of work (most often with elderly clients) is the question of whether or not a client is competent to sign their legal documents. Every principal (or person executing the documents) must be competent, and most attorneys—most people—can make this assessment based on observation, experience and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.
How can you tell if a person is competent? In her book Senior Moments author Jacqueline D. Byrd quotes law professor Peter Margulies’ six factors to determine capacity:
- Ability to articulate reasoning behind a decision
- Variability of the client’s state of mind
- Appreciation of the consequences of a decision
- Irreversibility of a decision
- Substantive fairness of a transaction
- Consistency with lifetime commitments
Byrd goes on to say that for the purposes of determining whether or not a person is competent to sign a will or trust, however, the requirements may be slightly different; more focused on whether or not the principal has a clear knowledge of his or her assets, has a full knowledge of the persons to whom the estate is being left, and is able to reasonably formulate and express a plan for the disposition of the estate.
The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or Dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to have mental examination performed by a doctor, and even perhaps include a video of the will signing. While the video is NOT a legal substitute for the Will or Trust, it can show mental competence at the time of signing if it is properly handled. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.
What Does “Do Not Resuscitate” Mean to You?
January 29, 2010
Everybody seems to know (from popular TV shows, if nothing else) that DNR means “Do Not Resuscitate”, but do you know what “Do Not Resuscitate” means in your own personal healthcare directive or living will? Too often, when talking with clients about the healthcare documents in their estate plans, they don’t know the extent of their own (or their parent’s or grandparent’s) instructions.
“Do Not Resuscitate” can cover a wide array of options, which is why it is so important to define what “life-saving procedures” means to you, and exactly when you would like your DNR to go into effect. Here are some examples of “life-saving procedures” that you (or your elderly relatives) should talk about with family, medical staff, and your estate planning attorney:
Artificial Nutrition and Hydration When grandma decides to stop drinking fluids orally and begins to dehydrate, does the nursing staff have permission to keep her hydrated via IV fluids? What about if you are in a non-reversible coma and unable to drink liquids on your own?
Antibiotics or Other Medicines Do you include antibiotics in your definition of “life-saving procedures?” Do you still if you have been declared irreversibly brain-dead by two independent physicians? When you are 102 and confined to a bed in a nursing home, do you want to be given medicines to combat pneumonia or other illnesses?
Chemotherapy A point similar to the paragraph above; if you are 102, afflicted with dementia and confined to a bed, do you want to receive expensive and painful chemotherapy treatments if the doctors discover cancer?
Blood Transfusions Blood Transfusions are fairly universally considered “life-saving procedures”, and they should be addressed in your healthcare documents. Do you have religious reasons for refusing a blood transfusion? Do you still want one if you are severely and irreversibly disabled?
Organ Donation Though obviously not considered a “life-saving procedure”, organ donation is a topic you should discuss with your family, medical providers, and estate planning attorney to prevent any misunderstandings or delays in treatment if and when the situation arises.
A healthcare directive is one of the most important documents in your estate plan. State-specific healthcare directives or living wills can often be found for free online or at your doctor’s office, and in a pinch these will work; but they cannot take the place of a conversation with a knowledgeable estate planning or Elder Law attorney who will ensure that all aspects of your decision-making process are addressed and put down in writing. After being discussed and incorporated into your Advance HealthCare Directive, you should then discuss them with your agent, which is usually a member of your own family. Be proactive in this effort, and it will save grief for the family and help ensure that your wishes are followed.
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