Taking Time for End-Of-Life Planning
January 1, 2011
Advance Health Care Directives (legal documents which include a nomination of your health care agent, and your preferences for end-of-life care) saw a lot of press in 2009 when the Obama administration sought to include end-of-life planning in the new healthcare overhaul. The option was dropped after a media firestorm about “death panels,” but according to this article in the New York Times Medicare-funded end-of-life discussions may be back.
According to the new regulation, Medicare will pay for “voluntary advance care planning” as part of patients’ annual visits with their doctor. “Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.”
The reasoning behind the new regulation is simple, and something estate planning lawyers have known for a long time; “research [has] shown the value of end-of-life planning. ‘Advance care planning improves end-of-life care and patient and family satisfaction and reduces stress, anxiety and depression in surviving relatives.’” Additionally, “end-of-life discussions between doctor and patient help ensure that one gets the care one wants.”
So why does end-of-life planning make so many people uncomfortable when research has shown just how beneficial it can be? Paula Span, author of this post on the New Old Age blog thinks it might simply be a matter of semantics, especially when it involved the term “Do Not Resuscitate.” Ms. Span argues that a more friendly term such as “Allow Natural Death” could make all the difference in the world.
“The phrase “do not resuscitate” signals an intent to withhold or refuse… ‘It says you’re not going to do something.’ To “allow natural death,” on the other hand, connotes permission. ‘It doesn’t sound so overwhelming or scary.’”
Whatever term you use, or however you choose to talk about it, the important thing is that you DO talk about it—with your family and loved ones, with the person you choose as your agent, with your doctor… and even with your lawyer. End-of-life planning is about personal and medical preferences, but the document itself is a legal one; your lawyer can help ensure that your Advance Health Care Directive will hold up in a court of law as well as in the hospital.
Executors and Agents: Choosing Your Own Replacement
October 9, 2010
When people think about estate planning they generally think about inheritance, or taxes, or even guardianship—but rarely are the words “executor” or “agent” the first ones that come to mind. And yet, choosing your executor or your agent is one of the most important decisions you’ll ever make.
Your executor is the person who carries out the instructions in your will. You may spend hours (sometimes months or even years) agonizing over inheritance plans and making decisions; but in the end, when the time comes for all of those decisions to be implemented, you’re not going to be around. If there are any questions to be answered or clarifications to be made they’re going to fall to your executor.
Your agent is the person who—depending on whether the document is a health care directive or a financial power of attorney—will make your important financial or health care decisions when you are unable. This person is your proxy during your life, signing checks on your behalf or talking to doctors about your treatment.
Considering all of this, it is understandable why so many people have trouble naming an agent or executor. It’s not easy to choose your own replacement, so to speak. But the most difficult decisions are often the most important. If you are a parent of more than one child then you know about the sibling fights that can erupt seemingly out of nowhere, even in loving and agreeable families. This is especially true when there is any uncertainty about what mom or dad’s true wishes were. The right agent or executor can relieve much of that uncertainty.
So how do you choose the right agent or executor?
First of all, think it through carefully. Choose someone reliable, whose decisions you trust. You’ll want someone who’s careful; and you’ll want to choose someone who isn’t already overloaded, because they’ll need to have time to do a thorough job. Choose someone who knows you and who knows your family; a familiar face will be comforting in hard times. On the other hand, nominating a financial institution rather than a personal friend can work out well under the right circumstances, but research your choices carefully.
If there isn’t one clear choice you may decide to nominate two people to make decisions together. This can be a good alternative if the two work well together and share your values, but it can also be a recipe for disaster, so be sure to build in some protections: instead, consider naming an uneven number of agents or executors to prevent tie-decisions, or nominate a mediator or tie-breaker who can step in to prevent serious disagreements from having to be decided in court. If you wish to include the power to make family gifts, special legal considerations come into play: talk to your attorney about gifting powers if you wish to include them in your documents. They can often be very helpful, especially if you wish to delegate the authority to qualify you for a long term care subsidy under the Medi-Cal program.
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.
How to Pick the Perfect Health Care Agent
December 21, 2009
Cicero said “In nothing do men more nearly approach the gods than in giving health to men,” a quote which underlines the important role of anyone involved in your health care, whether it be a doctor or an agent. A health care agent is the person who makes medical decisions for you if you are unable to make them for yourself, decisions which often pertain to life and death, and can include the very difficult decision of whether or not to continue your life with artificial means. You certainly want to have someone in this role who is close to you, someone you can trust, but that is not the only criteria you may want to think about. You’ll want to make sure your agent is also someone who will ask smart questions, work thoughtfully with your doctor, and take an active role in making sure that your wishes are followed. The role of health care agent can be very “close to the gods” indeed, and should be taken seriously as such.
If you have a vague idea of what a health care agent is and does, but aren’t quite confident in the fact, the California Office of the Attorney General has provided this very informative article on the subject, which addresses not only the definition of health care agent, but also includes helpful tips on how to choose the best person for the job, as well as important things to keep in mind if you are the person who is acting as agent for someone else.
A Living Will Is Good For You, Good For The Country
August 7, 2009
President Obama’s pet project of health care reform seems to have a lot of people worried. His talk of living wills encouraging people to specify their end-of-life wishes in particular are the topics bandied about most often in tense (or downright frightened) conversations. Some people seem to think that the very act of specifying your wishes in a living will is going to put you on the Do Not Resuscitate list. We’re here to tell you that nothing could be further from the truth.
In fact, creating a living will is a smart idea, one that can save no small amount of expense, suffering and confusion on the part of your family and your medical care providers, and we aren’t the only ones who think so. Robert Powell of The Wall Street Journal’s MarketWatch agrees with us, and has written an excellent article answering the frequently asked questions about living wills, explaining the differences between a living will and a health care directive, and outlining why each and every adult should have one of these documents.
If you still aren’t convinced you should have a document specifying your wishes for end-of-life treatment, talk to any friend or acquaintance who has been through this final act of love in supporting a family member at end of life. When you are ready, we can help you execute the documents you need to get the care you want when you aren’t able to care for yourself. A living will or health care directive is a standard document in any estate plan, so if you’ve been considering creating an estate plan this may be a good time to take the plunge. Apparently executing a living will or health care directive is no longer beneficial only to you and your family; it’s also good for your country.
Health Care Agent; Choose Your Representative Wisely
December 16, 2008
Do you know who will be making your end-of-life decisions when you are incapacitated? If you haven’t named a Health Care Agent, it is possible that a family member who does not share your views or wishes, or with whom you are no longer close, may be asked to call the shots in an end-of-life situation. In Mary Clark’s case, the laws of the state of Nevada put her healthcare decisions into the hands of her long estranged daughter rather than her companion of 18 years.
Executing an Advance Health Care Directive and nominating a Health Care Agent is not just about choosing the right person to make the big life-and-death decisions for you. It’s also about taking care of the loved ones you leave behind and giving them “permission” to follow your instructions. Perhaps Mary Clark would have wanted to be removed from life-support, as her estranged daughter chose to have done, but she may also have wanted her beloved companion to be involved in the decision, and have a chance to say a peaceful goodbye.
Most people have strong wishes about life-support and end-of-life care, but rarely do they want those wishes to be an undue burden upon their loved ones. Creating a Health Care Directive which outlines those wishes is important not only for your own peace of mind, but also to ensure the peace of mind of your loved ones, those who will be left to mourn your absence after you’re gone.