Articles Posted in Planning for Incapacity

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shutterstock_265887227In October, California became one of five states to permit medical aid in dying with the passage of the End of Life Option Act. The bill is modeled after one passed in Oregon in 1997.

Governor Brown signed the bill, with a signing statement that said, in part, “I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn’t deny that right to others.”

The bill allows doctors to prescribe lethal drugs to terminally ill patients who are expected to live six months or less. A patient must make two oral requests, at least 15 days apart, and one written request, signed in front of two witnesses. The signer must have the capacity to understand what they are requesting, the request must be voluntary, and a physician has to discuss feasible alternatives that would also be available to the patient.

In addition, a patient must self-administer the drug (in other words, no one else can administer the drug) and no one can request such drugs on another’s behalf (in other words, no one can act for a patient to make such a request through a power of attorney, an advance health care directive, or as a conservator, health care agent, surrogate, or any other legally recognized health care decisionmaker.) A patient can rescind such a request at any time.

The bill provides a form for the request for lethal drugs that reads in part:

REQUEST FOR AN AID-IN-DYING DRUG TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER I, ………………………………………………, am an adult of sound mind and a resident of the State of California.
I am suffering from ……………., which my attending physician has determined is in its terminal phase and which has been medically confirmed.
I have been fully informed of my diagnosis and prognosis, the nature of the aid-in-dying drug to be prescribed and potential associated risks, the expected result, and the feasible alternatives or additional treatment options, including comfort care, hospice care, palliative care, and pain control.
I request that my attending physician prescribe an aid-in-dying drug that will end my life in a humane and dignified manner if I choose to take it, and I authorize my attending physician to contact any pharmacist about my request.

The Bill takes effect 90 days after the Legislature adjourns its special session on health care, which will be sometime in 2016. To read more about the End of Life Option Act, here’s a good summary from the LA Times.

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old-peoples-home-63614_150I recently read a Huffington post article about the need for women to plan their estates as if they were single. And that got me thinking about how, despite our best efforts to plan, life just has a way of constantly changing.  Children grow up, we get old, and even families slip away, or change over time.

I work with families to craft estate plans all of the time, and it’s hard enough to get them to focus on the inevitability of death. Let alone the possibility that one of them is likely to survive the other, and live alone in old age. But from now on, I will try and do a better job to get that idea on the table, too.

Statistics tell us that it’s likely to be the woman who survives.  According to a U.S. Census report, 80% of women will survive their husbands.  And it’s pretty common knowledge that close to half of marriages ultimately fail.

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QuestionmanIf the answer to that question is, “N0!” you are in good company. A recent survey by of 1,000 adults found that less than half of the adults surveyed (45.8%) knew where their parents’ documents were.

When asked if they even knew whether or not their parents had an estate plan in place, only about half (55.4%) said that they did.

When asked if they knew the contents of their parents’ estate plans, only 42% said that they knew what was in those plans.

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shutterstock_156185702Who knew?! I honestly had no idea that there was such a thing as National Estate Planning Awareness Week, but, in fact there is, and it’s the third week in October, established by House Resolution 1499 in 2008.

When I worked in the US Senate, I was particularly thrilled by National Ice Cream Day (the third Sunday in July) and when I worked in the California State Legislature there was one day when bikers from all over California rode around the capital to protest helmet laws (I’m not sure if that was an official day or not). But this, while not nearly as thrilling as either of those days, is still a good excuse to remind folks about the importance of having a plan in place and keeping it current.

The American Bar Association cites statistics that estimate 55% of Americans don’t have an estate plan. I’ve seen other estimates that over 120 million Americans don’t have an estate plan in place. Either way, that’s a lot of people.

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headlamp-2940_150This week, an elderly driver lost control of his car and crashed into a cafe on University Avenue in Palo Alto, injuring six, including himself. News reports say that the driver was trying to park, and accidentally hit the gas pedal instead of the brake pedal.

As we, or our parents, age, the question of when someone should stop driving is almost certain to come up.  While it is true that impaired driving isn’t always a factor of age, it is also true that as we age our reactions slow, our vision declines, our hearing decreases, our flexibility and strength decline, cognitive and decision making ability changes, and our judgment about our ability to drive isn’t always objective.

Sometimes people can recognize their decline and voluntarily decide to stop driving. Sometimes family and friends have to step in and question whether or not it’s safe for someone to continue to drive. It is difficult for both the older driver and the family to discuss this issue, but the literature repeatedly warns families NOT to postpone the conversation because it is difficult or unpleasant. Instead, they should focus on safety and preventing accidents.

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plane-50893_150Inevitably, in the summer months, I get phone calls from people who are about to take a trip somewhere, often within just a few days. Sometimes they have a Will or a trust that’s out of date; sometimes they have no estate planning documents at all; sometimes they have just finished getting divorced and are in a panic because they haven’t gotten around to updating their Will or trust.

Much as I try to help everyone who calls, sometimes (often) there’s just not enough time to update their documents before that plane takes off or the road trip starts. What to do?

Although none of the documents I’m about to suggest take the place of a well-drafted Will or trust, they can serve to get something in place before a trip, quickly and with minimal or no expense. Upon your return, you can come in and get the job done right — but at least you can take to the skies with some peace of mind.

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The tragic case of the Oakland twelve-year old girl, declared brain dead after a routine surgery by the hospital, and her parent’s plea to keep her connected to a ventilator nonetheless, reminds me yet again of the value and importance of completing an Advance Health Care Directive.  

This document allows you to name agents to act on your behalf with respect to health care decisions and to state your wishes for end of life care. 

In the immediate case, of course, the girl was a minor, and would not have been able to make her own advance health care directive, so it is her parents who are making those choices for her. For the rest of us, this case is a cautionary tale–it is important to let people know what your choices would be at the end of life if you are not going to be able to communicate your wishes yourself, otherwise you won’t have any control over how that decision gets made.

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It is a sad fact that elderly adults can fall victim to abuse, often at the hands of a family member or trusted friend or employee. The California State Bar estimates that one in seven seniors suffer some form of physical, financial, or psychological abuse.

Some common forms of financial elder abuse include:

Misuse of a Durable Power of Attorney: a person convinces a senior to sign a power of attorney, then uses that document to withdraw money from that person’s bank or brokerage accounts or to open fradulent credit cards in that senior’s name.

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mom and kids.jpgIt’s mother’s day and I’m thinking about the fact that my daughter goes to college soon. She also turns eighteen years old in November, and, in addition to the new camera she thinks that she wants for a present, I’m going to surprise her with something else–a Durable Power of Attorney and Authorization for Release of Confidential Health Care Information. I guess that’s what comes from being a mom and an estate planner. But once my daughter (and your children, too) turn eighteen, doctors are not going to release confidential health care information about them to you without the consent of your child.

By signing a Durable Power of Attorney your child can name you as an Agent to take care of his or her financial matters if they become incapacitated, and by signing an Authorization for Release of Confidential Health Care Information they are giving doctors permission to answer your questions should your child become ill or injured.

I am fully aware that my daughter would prefer the camera, and would prefer, honestly, not to have to think about the fact that turning eighteen is a big deal, legally, but pretending like she’s not growing up isn’t going to be sufficient if she ends up in the hospital and I can’t find out why.

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hospial.jpgAs an attorney, I’m used to people asking me questions with complicated answers. Life isn’t always neat and tidy, and the law isn’t always (ever?) cut and dried. But this is an easy topic to write about, because the answer to the question, “Who needs a Durable Power of Attorney?” is truly simple: Everyone!

A Durable Power of Attorney is a legal document that authorizes someone else, called your Agent, the power to act on your behalf. A well-implemented estate plan will have two such documents: one that authorizes your agent to act for you with respect to finances and property, the other to act for you with respect to health care decisions. In California your Durable Power of Attorney for Health Care is part of your Advance Health Care Directive, which names your health care agent and states your wishes for end-of-life care.

Think about it: all of us can get sick unexpectedly, or injured in a random and surprising way. All of us may face a few weeks or months during which we aren’t able to get to the bank, pay our bills, or otherwise manage finances. Any of us could face surgery that leaves us unable to communicate for some period of time. Medical privacy laws make it illegal for doctors to release confidential health care information, even to spouses and children, without your prior consent. Financial institutions will not allow you to get information, let alone act on someone’s behalf, unless they know you’ve been authorized to do so, and are not out to defraud one of their clients. That’s why Durable Powers of Attorney exist–because without them, getting sick would mean being stuck without any way to get the help we need.