Category Archives: Elder Law

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Why you need a living will & healthcare power of attorney

terri schiavo

Most people don’t like to think about what will happen if they’re in an accident or come down with a catastrophic illness.  They don’t decide who they want to speak for them if they are unable to communicate their wishes themselves.  They don’t tell anyone what kind of care they want….or don’t want.  Once they are hurt or incapacitated, it may be too late.

These are three reasons why you need a living will and a healthcare power of attorney:

1) You name the person you want to speak for you when you can’t.  It should be someone  you trust to make decisions on your behalf and to carry out your wishes.

2) You decide whether you want heroic measures performed to prolong your life if there’s no chance of recovery.

3) You outline the type of treatment you want to receive.

If you don’t have these documents, a relative you don’t know very well and don’t trust or possibly the courts will speak for you and decide what will happen.

For example, they may decide to put you on life support and prolong your life even though there is no chance of recovery and you may not have wanted heroic measures.  They may choose to perform a surgical procedure that you don’t want or they may decide to do something that is against your religious beliefs.

A living will enables you to describe the kind of care you want.

A healthcare power of attorney (It may be called something else in your state or it may be combined with a living will) allows you to name the person you want to be your healthcare agent who can speak for you when you can’t.

Unfortunately, a life threatening accident or a catastrophic illness can occur at any time.  There’s no age that is exempt.  Think of Terri Schiavo.  She was a 26 year-old that had a tragic fall, went into a coma and remained alive, hooked up to a feeding tube, in a vegetative state for more than 15 years because her husband and her parents couldn’t agree on her treatment and she hadn’t legally stated her wishes.

Don’t let others decide for you.  If you don’t have a living will and a healthcare power of attorney, get them drawn up right away so your wishes will be carried out and you will be able to speak for yourself….even when you really can’t.

For more information on this important subject, go to www.diesmart.com.

Medicare to pay for end-of-life care counseling

Effective January 1, 2016, Medicare plans to pay doctors to speak to patients about their end-of-life care. The doctors will provide counseling and discuss options that range from care that’s more focused on comfort than extending life to doing whatever is possible to resuscitate a dying patient. Some doctors are already having conversations about this topic with their patients but are not billing for it.

Medicare payment will ensure that more doctors will have these conversations which many feel are critical to high-quality care.

The Institute of Medicine issued a report last year which found that few people make their wishes known so many deaths “are filled with breathing machines, feeding tubes, powerful drugs and other treatments that fail to extend life and make its final chapter more painful and unpleasant.” The report, “Dying in America” is free as a PDF or can be paid for and ordered as a bound volume.

While most people have given thought to how they would like to die, many have found it difficult to communicate those views and choices to family and loved ones and, in many cases, family and loved ones have their own perceptions and views about death that can influence discussions about dying.  Most people envision their own death as a peaceful and an ideally rapid transition. However, with the exception of accidents or trauma or of a few illnesses that almost invariably result in death weeks or months after diagnosis, death usually comes at the end of a chronic illness or the frailty accompanying old age. Even though death is very much part of the cycle of life, thinking and talking about one’s own death usually remains in the background, at least until its prospect become more probable or imminent.

Thru the new Medicare offering doctors will be able to discuss with their patients how they would like to die, and to encourage them to put their wishes on paper and share those wishes with their family.

The “Aid in Dying” movement – is it a good idea?

According to an article that appeared a few days ago in the New York Times,  there is a new movement in the United States called “Aid in Dying”.  It’s supporters try to avoid calling it what it really is – assisted suicide – but, whatever they call it, it’s gaining traction.   

Until 2008, assisted suicide was legal in just one state: Oregon.  Today, it’s legal in five states: Montana, Oregon, Washington, Vermont and New Mexico.  Supporters of the right for a terminally ill patient to choose aid in dying are supporting “death with dignity” bills in Connecticut and other states. 

Lawsuits in New Mexico and Montana related to this topic have resulted in a differentiation between aid in dying, which is now legal, and assisted suicide, which is still considered a crime in both of those states. 

Church groups have weighed in on the topic and claim that aid in dying is morally wrong.  However, more and more people are asking for the right to die on their own terms according to Barbara Coombs Lee, president of Compassion & Choices.  

In May 2013, a Gallup Poll was conducted.  It asked whether doctors should be allowed to “end the patient’s life by some painless means” when patients and their families want it.  70% said yes.  However, when asked whether doctors should be allowed to help a dying patient “commit suicide”, only 51% said they should.  It’s clear that the exact wording is critically important in assessing how people really feel about the issue and on what is actually legal. 

What do you think?  Should aid in dying be made legal in your state?

To learn more about other topics related to death, go to www.diesmart.com.

What is the most important part of estate planning?

When you do your estate planning, you probably think the most important part of this planning is your Living Will or your Last Will and Testament.  They are very important but they are not the most important thing.

I recently read an article by Julie Garber on about.com and she said the most important part is to select the right person to do each of the jobs your estate plan will require.”  After thinking about it, I agree.

When selecting a person to be your healthcare agent or guardian for your minor children or personal representative, be sure that this is a person who has your best interests at heart.  Also, verify that this person has the time as well as the skills to perform the needed tasks.  And, finally, select someone who you think can make wise decisions.

If you have name someone who declines to accept this position, and the backup person you’ve named also declines, a judge will make all of the decisions for you and your family or will find someone who is willing to do so; this person may not be someone you would have chosen and may not do things the way you would have wanted them done.

Think about it carefully and choose wisely.

For more information about estate planning, go to www.diesmart.com.

Bad mistake made by heiress Huguette Clark

Huguette Clark was an heiress who died in 2011 at age 104.  She left behind a $300 million estate.  The bulk of the money was inherited from her father, a copper tycoon in Montana.   She owned a 23-acre estate near Santa Barbara valued at $100 million, a $24 million house in Connecticut and a $100 million coop on Fifth Ave. in New York.  She was a painter and a collector of rare French and Japanese dolls.  She had no children, no close relatives and only limited contact with any of her distant relations.

She spent the last 20 years of her life living at Beth Israel Medical Center as a recluse, closer to her doctors and nurses than any family.

When she died, the only people who attended her burial were funeral home employees.

What did she do wrong?  She left behind two wills, written just six weeks apart.

The first one left  $5 million to her nurses and the balance of the estate to her distant relatives, even though 14 of the 19 involved said that they had never even met Huguette.

The second will left nothing to the relatives.  It specifically said” I intentionally make no provision…for  any members of my family…having had minimal contact with them over the years.”  Instead, charities are the largest beneficiaries, receiving over 80% of the estate.  Also named was her registered nurse, Hadassah Peri, who would receive $15.3 million after taxes, and a goddaughter who would get $7.9 million.  Lesser beneficiaries included Beth Israel Medical Center, her attorney, her personal assistant, her accountant, property managers and one of her doctors.

In addition to what she was given in the will, her registered nurse received more than $31 million in gifts before Clark died and the estate administrator is asking that the $31 million be returned to the estate.

Family members are claiming that the second will was written under duress when she was mentally ill and incompetent and the victim of fraud by her nurse, attorney and accountant.

Negotiations have been going on for a few years, with 60 attorneys involved in the case.  However, the chance of a settlement is not certain and a jury trial is scheduled to begin in Surrogate’s Court in Manhattan on September 17th.

Huguette Clark should have had better legal counsel when she decided what to do with her sizeable estate.  She should have prepared a trust, including directions on who had the right to make decisions on her behalf when she was unable to do so.  And she probably should have destroyed the first will.

It will be interesting to see what the probate court decides if a settled hasn’t been reached prior to September 17th.

For more information about Hugette Clark and her reclusive life, look for a book being released on September 10th titled “Empty Mansions: The Mysterious Life of Huguette Clark and the Spending of a Great American Fortune.”

To learn more about how to plan for the end of your life, go to www.diesmart.com.