Patinelli & Chang, LLP

Preparing for the Legal and Medical Aspects of End-of-Life

“We plan for so many transitions in life: births, graduations, weddings, retirement and moves. We want these transitions to go smoothly and be as comfortable and easy as possible.”

Planning for the end-of-life transition is something most people still avoid as a difficult topic. It’s true: for many people this topic is just too sad and scary to talk about, says Flagstaff Business News in the article “Easing the End-of-Life Transition with Advance Care Planning.”

However, planning for one’s death is a kindness to loved ones, family members, friends or even neighbors when others are left to make decisions about medical care, when an individual can’t do it for themselves.

In the estate planning field, this is called advance care planning. It involves learning about the decisions that often need to be made, considering the options and decisions ahead of time, and memorializing those decisions with the correct and enforceable legal documents. This gives a person the ability to think about what they want in the way of treatment or care, and what they don’t want.

It makes things much easier for the survivors, who otherwise have to guess what was on their loved one’s mind or what they would have wanted.

Here are the medical decisions that most frequently need to be made:

CPR, or Cardiopulmonary Resuscitation. This is to get the heart to start beating again, when it has stopped and can range from the use of hands, a defibrillator or chemical means.

Ventilator or Assisted Breathing. This is the use of a machine, connected to a breathing tube that is inserted through the mouth or lungs and down the throat. It is not comfortable, and the patient cannot speak with the tube in their throat.

Artificial Nutrition. This is the delivery of nutrition through an IV (intravenous) or a feeding tube.

Comfort Care. Doing anything to make an individual comfortable at the end of their life. It can include everything from medication to emotional and spiritual counseling. The goal is to provide a person with a dignified end of life, while relieving as much suffering as possible.

Once decisions have been made about these medical treatments, it’s time to get them down on paper.

You’ll need a Living Will. This is a written document expressing your wishes for end-of-life care. If you cannot speak on your own behalf, this is the document doctors will use to guide your care.

Durable Power of Attorney. This is a legal document used to name another person to make health care decisions on your behalf.

In addition, you should have your estate planning attorney prepare a Last Will and Testament, so your property is distributed according to your wishes. An estate planning attorney can help make sure all the details are addressed.

These are not fun topics but thinking about what you would like to have occur and documenting your wishes provides direction for your loved ones, who would otherwise be guessing at what you would have wanted.

Reference: Flagstaff Business News (Aug. 2, 2019) “Easing the End-of-Life Transition with Advance Care Planning”

The Gift a Graduate Really Needs: Legal Documents

“As we head into graduation season, many families will start making plans for their young adult children to leave home for college, travel or to begin a new job.

As children or grandchildren start new chapters in their lives, one thing to be aware of: once they turn 18, parents no longer have access to their medical, legal or financial information. Parents are not legally able to made medical or financial decisions on behalf of their adult children, even if they are ill or incapacitated, warns grbj.com in the article “Give your graduate the gift of legal documents.”

Here are recommended steps to take, so parents can still be involved in their children’s lives when they are needed:

Health care proxy/medical power of attorney. Even if you are the person paying for health insurance, you are not legally permitted to make decisions on their behalf. Have your child sign a proxy/POA form designating who has the primary authority to make health decisions, if he or she is unable to do so. This is especially important when parents are divorced: both parents need to have the proper forms. Your estate planning attorney will be able to prepare these for you.

Durable power of attorney. If your child has signed a durable POA, you will be able to handle their financial matters, especially if your child becomes incapacitated.

HIPAA authorization. Medical providers may not disclose a patient’s medical status, unless they have legal permission. Your child should sign a HIPAA authorization with each of their providers, giving the parent access to all their information. This is especially necessary for a child with health or mental issues.

FERPA waivers. This one takes many parents by surprise. Even if you are the one paying for tuition and all college expenses, the college will not provide academic records, including grades and tuition bills, due to the Family Education Rights and Privacy Act. Contact the college and find out exactly what forms they need to be sure you have access to all of your children’s information, including any health and mental health treatment.

Wills and trusts. If a child has assets and no descendants, they need a will or revocable trust to protect the parent’s taxable estate and allow someone to manage these assets, if they die prematurely.

Medical records. Make sure the child has access to their medical records, including medications, allergies, immunizations, etc.

Insurance. See if the family’s medical, homeowner’s and auto insurance coverage extend to a child living away at school and in another state. If the child is renting a house or apartment, make sure they have renter’s insurance.

Proof of identity. Make sure the child has access to their passport, birth certificate or Social Security card, so they can get an internship or a job.

Bank accounts and credit cards. If the family’s regular bank does not have a branch where the child is attending school, the parents should consider opening a basic checking account at a local branch. Both parents and child should be on the account.

Registration. It’s time to register to vote and sons will need to register with Selective Service.

Helping children transition into adult life is both exciting and worrisome. The more information you can provide them with, and the more they learn to do for themselves, the better they will be able to manage their lives independently.

Reference: grb.com (June 7, 2019) “Give your graduate the gift of legal documents.”

How an Advance Care Directive Protects You and Your Family

There may be only one conversation more difficult than telling children the facts of life. It’s telling loved ones what you want at the end of life.

Imagine yourself in the intensive care unit of a hospital after a major stroke or heart attack. Doctors aren’t sure if you are going to live or die, and if you do live, they’re not sure if you will be able to recognize or interact with family and friends.

Do your loved ones know what your wishes are in this situation?

There is simply no way to know when a sudden health event or an accident could render a person unable to communicate, advises The Advocate in the article “If you were on death’s door, what happens next? Advance care directives can make sure that your wishes are carried out.”

When you are not able to speak, you can’t tell loved ones that you’ve had a good life and you are okay with letting go, or if you want to fight to stay alive, no matter how invasive the process may be.

That’s why you need an advance care directive. Anyone over age 18 needs to give this some thought and then take the next step and have the necessary document prepared. It’s a good idea for anyone over age 18 to have a will prepared as well, especially if they own a home, car or have personal property they would like to pass along to any specific people.

The second part of advance care is to name a person as your health care power of attorney. That person will be in charge of making medical decisions when you cannot. People typically name their spouse, but that’s not always the best option. An honest assessment of how your spouse responds during an extremely emotional crisis needs to be made. It’s possible that you may be better off naming a trusted friend.

Here are the steps to follow for Advance Care Planning:

• Identify someone who will take on the role of health care power of attorney.
• Reflect on your values and beliefs and what living well means to you personally.
• Consider religious, spiritual, or personal beliefs and how they align with your end of life wishes.
• Share your decisions with the person you wish to take on the role of health care power of attorney.
• Make sure that person is able and willing to carry out the duties, even if the family or other people feel opposite of your wishes.
• Meet with an estate planning attorney to document your health care power of attorney.

While you are attending to this task, speak with the estate planning attorney about having a will and a power of attorney created. Once these documents are taken care of, you and your family will be better protected, in the event of an unexpected tragedy.

As time goes by, the people you have chosen for these roles may age or your relationship with them may change. Every now and then, check in with them to ensure that they are still willing and able to handle the responsibility of a health care power of attorney and power of attorney.

Reference: The Advocate (April 14, 2019) “If you were on death’s door, what happens next? Advance care directives can make sure your wishes are carried out”

How to Decide Who Your Healthcare Proxy Should Be

“No matter our age, it makes a lot of sense to name a healthcare proxy, someone to make critical medical decisions for us in a crisis.”

It’s especially important to name a healthcare proxy, because the chances of having a crisis escalates dramatically as we age. That’s why so many people put off naming a healthcare proxy, says Forbes in the article “How to Select A Healthcare Proxy,” often only addressing this, when they are completing other documents for their overall estate plan.

What usually happens is that people get so stressed out about naming a healthcare proxy that they put it off or make a bad selection. Making it even worse, is neglecting to tell the person they have chosen for this important responsibility.

It’s not guaranteed that the person you chose as your healthcare proxy will ever be called on to serve. However, if they are, you’ll want to make sure they meet certain guidelines. For one thing, they’ll need to be at least 18 years old. They cannot be your direct health care provider or any of the direct health care provider’s employees, unless that person is also your spouse. They have to be willing to speak up and adhere to your own wishes, even if those wishes are not the same as their own. You’ll want to have a very candid conversation with the person you think you want to name as your healthcare proxy.

You might want to go through this exercise to make sure they are really willing to carry out your wishes. Create a worksheet that describes in detail some of the situations they may face. There are a few sources for this kind of worksheet, including one from a group called Compassion and Choices, a nonprofit centered on helping people get what they want at the end of their lives.

If you are close with your family, it may seem obvious to select your spouse, first-born child, or a sibling for this task. However, be realistic: when push comes to shove, will they be able to stand up for your wishes? Will they be able to deal with the fallout from family members, who may not agree with what you want at the end of your life? They’ll need to be up to the challenge.

Age is a real factor here. You want your proxy to be available in both the immediate and distant future. If you have a sibling who is only two years younger than you, she’ll be 84 when you are 86. That may not be the time for her to make hard decisions, or she may not be available—or alive. Select a few backups, and make sure the primary, secondary and even tertiary are listed on your advance directive.

Geography also matters. The person may be called upon in a crisis—if you are on the West Coast and they are in the Midwest, will they be able to get to your bedside in time? Many hospitals and skilled nursing facilities require a live human being to be physically present, if critical care decisions need to be made. Someone who lives within a 50-mile radius of you, might be a better choice.

Once you’ve made the decision, you’re almost done. Have a conversation with the person, whether they are the primary or a backup. You should also have a conversation with your estate planning attorney, to make sure that your healthcare directive and any related documents are all set for your future.

Reference: Forbes (April 10, 2019) “How to Select A Healthcare Proxy”

What is an Advance Directive and Do I Need One?

“Normally, your doctor explains your health care options. You then decide what is best for you. What happens if you are too ill to make decisions for yourself? Who do you want to make those decisions for you?”

These are difficult questions to think about. However, they are very important, as every estate planning attorney knows. Should you ever become unable to speak for yourself, reports the Enid News & Eagle in the article “Veteran Connection: What you should know about advance directives,” there is a way to make a plan, so your wishes are known to another person or persons and by legally conveying them in advance, making sure you have a say, even when you don’t have a voice.

The advance directive helps family members and your doctors understand your wishes about medical care. The wishes you express through these two documents described below, require reflection on values, beliefs, views on medical treatments, quality of life during intense medical care and may even touch on spiritual beliefs.

The goal is to prepare so your wishes are followed, when you are no longer able to express them. This can include situations like end-of-life care, the use of a respirator to breathe for you, or who you want to be in the room with you, when you are near death.

It should be noted that an advance directive also includes a mental health component, that extends to making decisions on your behalf when there are mental health issues, not just physical issues.

There are two types of documents: a durable power of attorney for health care and a living will.

The durable power of attorney for health care lets you name a person you trust to make health care decisions when you cannot make them for yourself. This person is called your health care agent and will have the legal right to make these decisions. If you don’t have this in place, your doctor will decide who should speak for you. They may rely on order of relationships: a legal guardian, spouse, adult child, parent, sibling, grandparent, grandchild or a close friend.

A living will is the document that communicates what kind of health care you want, if you become ill and cannot make decisions for yourself. This helps your named person and your doctor make decisions about your care that align with your own wishes.

Another very important part of this issue: the conversation with the people who you want to be on hand when these decisions have to be made. Are they willing to serve in this capacity? Can they make the hard decisions, especially if it’s what you wanted and not what they would want? Do you want a spouse to make these decisions on your behalf? Many people do that, but you may have a trusted family member or friend you would prefer, if you feel that your spouse will be too overwhelmed to follow your wishes.

Reference: Enid News & Eagle (March 13, 2019) “Veteran Connection: What you should know about advance directives”

Health Care Decisions in 2019 Require a Medical Power of Attorney

“A few months ago, I was planning knee replacement surgery. While providing the required pre-surgical information, including current medications, health history and more, the medical staff asked a question I was unable to answer.”

The patient above was asked if he had a living will or a health care directive. He wondered, why are they asking me this? It’s a simple knee replacement surgery. Do they think I am going to die? However, as discussed in the article “Take control of health care decisions in 2019 | Coming of Age…Again” from the Kirkland Reporter, all of these documents need to be in place anytime a medical procedure takes place, no matter how routine the patient may think it is.

Someone, whether a parent, spouse, friend or colleague, needs to be able to have the legal power to make decisions on your behalf, when you cannot. You need a health care directive or a durable Power of Attorney for health care, or both, or to have both of these documents combined into one (depending upon the state you live in; these laws vary by state). In Washington, the official term is health care directive. In other states, the term living will is used.

The health care directive is used to tell doctors and medical caregivers of your choices about medical interventions that you would or would not want to be used, in the unexpected event that you become seriously or critically injured, terminally ill or unable to communicate with those around you.

If you don’t have this document, the decisions will be made by select members of your family with health care professionals. If you don’t want certain things to happen, like being intubated or put on a feeding tube, and they feel strongly that they want to keep you alive, your wishes may not be followed.

A Power of Attorney and health care directives are created when working with an estate planning attorney to create an overall estate plan, which includes your will and any necessary trusts. These documents are too important to try to do on your own. There are major implications. What if they are not executed properly?

The person who is your health care agent has the authority to stop medical treatment on your behalf, or to refuse it. They can hire or fire any medical professional working on your care, and they can determine which medical facility should treat you. They can visit you, regardless of any visitation restrictions, and review your medical records. A durable Power of Attorney for health care gives this person the right to make decisions that are not necessarily covered in your health care directive.

Note that you can revoke your Power of Attorney document at any time, with a written notice to your agent.

These are complicated matters that deserve thoughtful consideration. The person you name will have tremendous responsibility — you are putting your life into their hands. Make sure the person you select is willing to take this responsibility on and have a secondary person in mind, just in case.

Reference: Kirkland Reporter (Feb. 20, 2019) “Take control of health care decisions in 2019 | Coming of Age…Again”

Why Can’t My Husband Go to the Doctor to Help Me?

“I am frustrated that I can’t send my husband to my doctor’s office to pick up a prescription or get information from my files!”

Health care privacy laws have created situations for many well-meaning people that become really annoying. If one spouse is ill and the other spouse is more than willing to take a ride to the doctor’s office to get a needed document, in many instances they cannot—even if the doctor or physician assistant knows them both.

It seems illogical that the person who is named as another person’s agent under an Advanced Care Directive can’t take on these tasks, says the Monterey Herald in the article “Senior Advocate: Can my health care agent help me now?” After all, if they can make decisions for you when you’re incapacitated, why can’t they do something as simple as get a copy of your medical records for a second opinion?

However, the Advance Health Care Directive isn’t the document that gives someone access to all of your medical information. The Advance Health Care Directive is usually the document that gives your named agent the power to make decisions about end-of-life or life-saving decisions. It’s the document that is used if a decision must be made about taking a person off of a respirator or a heart machine.

If you want to give someone the ability to run health-related errands for you or speak with your healthcare providers, it is possible to have an Advanced Health Care Directive prepared, so it becomes immediately effective, regardless of your capacity. This can be used to give a spouse the ability to have access to all your medical records and information.

If you are ill and want to have your spouse involved in your medical care, even if you are not incapacitated, the “effective immediately” option will let your spouse act on your behalf. You won’t have to wait for a physician to state that you are incapacitated, before an Advanced Directive can take effect.

Since an Advance Directive usually names an alternate agent, you can have the document prepared so your spouse is able to be effective anytime, but the alternate agent can be limited to when your spouse is not able to help, and you are unable to speak for yourself because you have become incapacitated.

Keep in mind that the Advance Directive, whether effective immediately or only upon incapacity, has nothing to do with your finances. That requires a different document, or documents, depending upon your estate plan and your unique situation.

An estate planning attorney will be able to craft Power of Attorney documents for finances, trusts or other assets. All these documents should be prepared, while you are still competent to understand how the documents work and what powers they give to your spouse or another named agent.

Reference: Monterey Herald (Dec. 22, 2018) “Senior Advocate: Can my health care agent help me now?”

Get These Three Estate Planning Documents In 2019

“Are you adequately prepared for illness, old age, and death?”

These may not be the first things you are thinking about as we launch into a brand-new year, but the idea is not to wait until you’re not thinking clearly or when it’s too late and you don’t have what you need to protect yourself, your family and your property. The details, from the Fox Business news article, “3 financial documents everyone needs,” are straightforward. Put this on your to-do list today.

A Will. The essential function of a will is to ensure that your wishes are carried out, when you are no longer alive. It’s not just for rich people. Everyone should have a will. It can include everything from your financial assets to life insurance, family heirlooms, artwork and any real estate property.

A will can also be used to protect your business, provide for charities and ensure lifelong care for your pets.

If you have children, a will is especially important. Your will is used to name a guardian for your minor children. Otherwise, the state will decide who should rear your children.

Your will is also used to name your executor. That is the person who has the legal responsibility for making sure your financial obligations are honored. Without an executor, the state will appoint a person to handle those tasks.

An Advanced Medical Directive. What would happen if you became ill or injured and could not make medical decisions for yourself? An advanced medical directive and health care proxy are the documents you need to assign the people you want to make decisions on your behalf. The advanced medical directive, also called a living will, explains your wishes for care. The healthcare proxy appoints a person to make healthcare decisions for you. As long as you have legal capacity, these documents aren’t used, but once they are needed, you and your family will be glad they are in place.

A Durable Power of Attorney. This document is used to name someone who will make financial decisions, if you are not able to do so. Be careful to name a person you trust implicitly to make good decisions on your behalf. That may be a family member, an adult child or an attorney.

Once you’ve had these documents prepared as part of your estate plan, you’re not done. These documents need to be reviewed and updated every now and then. Life changes, laws change and what was a great tax strategy at one point may not be effective, if there’s a change to the law. Your estate planning attorney will help create and update your estate plan.

Reference: Fox Business (Dec. 19, 2018) “3 financial documents everyone needs”

Is Your Medical Directive Up to Date?

“One important component of estate planning is a document, usually called a medical directive, which can include a living will, that sets out your wishes for end-of-life care and a health care power of attorney that designates someone to make medical decisions, if you are unable to do so.”

Medical directives, along with a number of other estate planning documents, require us to confront some of the unpleasant, important and inevitable issues that we will face. What typically happens is that families fail to discuss these topics. When an emergency strikes, family members and medical providers must make the decisions without any input from the person who has become ill or injured.

There’s a way to handle this, according to the article “Keep medical directives up to date” from the Watertown Public Opinion. If you don’t have a medical directive, it’s time to meet with an estate planning attorney and get started on one. If you do have a living will and haven’t looked at it in more than four or five years, it’s time for a review to make sure it still reflects your wishes.

Medical directives that are out-of-date often become useless. If a family member who was designated to make end-of-life decisions for a spouse is suffering from dementia, they are no longer legally competent to make any decisions.

One way to avoid this is to have an alternate person designated. Your spouse may be aging along with you, and one of you may not necessarily be able to make decisions, when they are needed. Be sure that the alternate has the strength of character to make a decision that follows your wishes, even if it’s not what your family wants to be done. They have to be able to follow your instructions, which is not always easy.

Just as important as having the documents created, is having the conversation among family members about what you want or don’t want. Having that conversation and clarifying wishes will make it far easier for the family member or designated representative, because they will know they are doing what you want. This conversation may give the individual empowered to make the critical decision greater confidence and strength.

While it is (relatively) easier to have these conversations when everyone is in good health, a family member who is scared, grieving and emotionally overwhelmed, may find themselves confronted with one of the hardest decisions of their lives.

That’s why it’s so important for people to give their family members the clarity and direction they will need, when it comes to end-of-life care decisions. You’ll need to select a person with a strong backbone, who is not easily frazzled and check in with them on a regular basis to make sure they can still perform the duties of their role.

An estate planning attorney will be able to discuss these matters with you and clarify who, among your family members or friends, would be the right person to select. A family meeting with the attorney may also make the process easier for all concerned.

Reference: Watertown Public Opinion (Nov. 20, 2018) “Keep medical directives up to date”

The Basics About Caring for a Senior Parent

“The best time to plan for the care of an aging loved one, is before they need to be cared for. Here’s what you need to know to get started.”

The reversal of roles happens when children become the caregivers of their aging mothers and fathers. In some families, it’s an easy transition, based on an affectionate understanding by children and parents that this is the natural course of life. However, it’s not easy for everyone, says Connecticut Magazine in the article “Senior Caregiving 101.”

The very idea of being in charge of the people who taught you how to tie your shoes and drive a car can be emotional. Therefore, many people put off having the talk about caregiving, until an emergency presents itself. That’s not a good plan. Those of us in our 40s, 50s, and 60s will at some point need to be involved in taking care of a parent, including their finances, living arrangements, legal issues and medical care.

Where to start? Take it one step at a time.

Begin with a conversation about these issues, long before anyone is sick. Getting started in a crisis leads to increased anxiety and sometimes outright panic.

If you are worried that your parents or siblings will think you are after their money, think again. How you approach these topics will make the difference. Once a caregiving plan, legal and financial matters are addressed, you’ll all feel more comfortable. Start with a simple thought: “I/We want to make sure that your wishes are respected.”

Is there a lot of paperwork? Yes and no. By preparing in advance, you avoid digging through a scavenger hunt for insurance policies and bills and wills. You’ll know where the documents are and will be free to focus on the important things, such as taking care of and spending time with your aging parents.

You’ll need to have a Power of Attorney prepared. A Durable Power of Attorney means that the Power of Attorney will remain in effect, so the appointed agent may continue acting, even if the principal becomes mentally incapacitated. Power of Attorney can be limited or broad. However, it’s a good idea to build in periodic reports, as a system of checks and balances.

You’ll also need an advance directive. This is a document that protects an individual’s right to refuse medical treatment or to request treatment, if they are not able to make decisions on their own. Depending on the person’s needs, they may need a living will, a health care representative, designation of a conservator and an anatomical gift declaration. This is needed, if they want to make an “anatomical gift,” which is also known as an organ donation.

A will should also be prepared with the help of an estate planning attorney. An executor needs to be named. However, it’s also important that any accounts with beneficiary designations be checked to make sure that they reflect your parent’s wishes. Any beneficiary designations supersede the will and there’s no way to undo that. If they haven’t looked at their life insurance policies in decades, it’s time for a review.

Reference: Connecticut Magazine (Nov. 23, 2018) “Senior Caregiving 101”