Posts Tagged ‘advance directives’

The Patient Self Determination Act and Trends in Advance Directives

MAY 4, 2015 VOLUME 22 NUMBER 17

Last month the U.S. Government Accountability Office released a short report on the use of advance directives in hospitals, nursing homes and other health care facilities. The report, requested by members of the Senate Committee on Commerce, Science, and Transportation, addressed the experience with health care powers of attorney, living wills and other advance directives. It makes interesting reading — or at least it is interesting to policy wonks concerned about individual autonomy and self-determination.

To review: the federal Patient Self Determination Act was adopted in 1990. It requires each state to summarize its state laws on advance directives (and to make that summary publicly available). It also requires hospitals, nursing homes, hospices, home health agencies, health maintenance organizations, and Medicare Advantage providers to inform patients about advance directives and to ask if they understand the concepts. It does not explicitly require health care providers to either ask for advance directives or to require any patients to complete them (in fact, the law prohibits any provider from requiring advance directives), but the thinking when the law was passed was that advance directives would become much more common.

Although the federal law does not require it, many states responded by not only summarizing their laws but also providing simple forms for patients to complete. And, though the law does not require this step either, many health care providers responded by offering those simplified forms to patients on admission or periodic review.

How well has the federal law worked in its quarter-century of existence? The study doesn’t really answer that question, though it does give some data points to assess changes in the medical community and care standards. At the time of adoption of the Patient Self Determination Act, activists estimated that perhaps 20% of patients had executed an advance directive. The study finds that almost half of adults over age 40 have now signed a living will or health care power of attorney. That suggests that something more than twice as many patients have done at least some health care planning — though it is unclear whether that is the result of the federal law or changing public knowledge and preferences (or both things).

Perhaps more interestingly, the study found wide disparities by type of care facility, medical condition, age, race, income level, and education level. Even gender made a significant difference, with women signing advance directives about 5% more frequently than men.

Interestingly, though, only a handful of the demographic categories reviewed in the GAO report had more than 50% compliance. Nursing home residents had signed advance directives about 55% of the time (up 10% from the previous decade). 60-year-olds had perhaps the most vigorous increase in signature rates, moving from just under half having signed a decade ago to almost three out of four today.

Interested in some of the other categories? You can read the report yourself, as it is available online. But here are some of the more interesting items we extracted from its analysis:

  • Unsurprisingly, people with chronic illness are about 10% more likely to have signed an advance directive. We say “unsurprisingly,” but perhaps it is surprising that the gap is not even wider, since only about one-third of those with chronic illness have signed.
  • People over age 65 are about twice as likely to have signed advance directives as their younger relatives. Adults under age 35 weigh in at only about 10%.
  • “White” Americans are much more likely to have signed advance directives than are African-Americans, Latinos or other races or ethnic groups. (Why quotation marks around “white”? Well, wouldn’t “pink” be more accurate?)
  • There is a clear relationship between income (each $25,000 increase in annual income seems to correspond with a 3-5% increase in signatures) and education (each degree increases the signature rate by at least 5%).

What does this information suggest to us about the use of advance directives? We have a number of ideas — occasioned more by our real-world experience than empirical evidence:

  1. You could sign an advance directive, right now. If you live in Arizona, there are plenty of resources to make it easy. Want to find Arizona forms? The Arizona Attorney General’s office has had perfectly acceptable forms online for several decades. Over time the detail, and the explanation, has grown the file to more than 20 pages — but don’t be intimidated. Actually filling out and signing the forms is pretty straightforward, and you could complete it today. Based on the statistics in the GAO report, there’s about a 50% likelihood that you’ll increase the percentage of coverage (that is, there’s about an even chance you haven’t done this yet).
  2. Do you already have an advance directive? No? Are you sure? We’re surprised how often long-time clients come back to see us to update their estate plans, and, “oh, by the way, I need to sign one of those health care powers of attorney this time.” Clients are often surprised that they’ve had perfectly good advance directives for years. If you’ve met with a lawyer any time in the past thirty years, you probably have gotten advance directives with your other estate planning documents.
  3. Sometimes people vaguely recall signing a health care power of attorney or a living will, but can’t think of where the documents are now. Wouldn’t it be nice if there was an easy way to keep these documents available online, and maybe just carry a wallet card with the information (for emergencies)? Good news! You can do exactly that — at least if you live in Arizona. We are one of about a dozen states operating a state registry for advance directives; it’s easy, free and helps keep track of your documents.


Health Care Directives — Advice for Snowbirds and Travelers

APRIL 20, 2015 VOLUME 22 NUMBER 15

Arizona weather is beautiful, especially this time of year. We do have our weather challenges — for most of the state, that means the summer months — but there is no doubt that Arizona is attractive to visitors from more northern climes during the fall, winter and spring.

Many of our “snowbird” visitors have taken care of their estate planning at home, before they get here. They might have signed a will, a trust, a durable financial power of attorney, and a health care power of attorney. Let us focus, for a moment, on that last document — the health care power of attorney.

If a resident of another state has signed a health care power of attorney and a living will in their home state, but they spend three months every winter in Arizona, should they sign a second document to govern their care while they are in Arizona? If so, what if they are only in Arizona for two weeks?

We’re not like those television shows, with driving music and a scary-sounding narration. We’ll give you the answer now, and explain it for a few moments. Generally speaking, we don’t think an occasional visitor — even one who stays for weeks or months and returns every year — really needs to sign separate Arizona documents. There might be exceptions, though, depending on some individual situations. We’re happy to explain what we mean — plus, this gives us a chance to write about “advance directives” generally.

If you have signed any documents about your health care decision-making — whether a “health care power of attorney,” a “living will,” a “health care proxy declaration,” or some other similar-sounding document, you have signed an advance directive. The latter term is the catch-all description for all of the former documents, regardless of local laws and terminology. Advance directives are just any directive about your health care that you make in advance.

(A pet peeve: an advance directive may be very clever and innovative — that is, advanced — but then it would be called an “advanced advance directive.” In other words, your health care documents are not “advanced directives,” but “advance directives.” Thanks — we feel better getting that off our chests.)

But is your Minnesota (or New York, or Iowa) health care power of attorney — whatever it is called in the state where it was written — valid in Arizona? Short answer: yes. Arizona law says that a health care directive from another state is valid in Arizona “if it was valid in the place where and at the time when it was adopted” (so long as it doesn’t violate Arizona criminal law).

But wait — we’re not done. There are still a couple questions to consider:

  1. Did you name your daughter back in Wisconsin (where you live nine months of the year) as your health care agent? If so, do you think it might make sense to make your son in Arizona your agent while you’re here? It might not be a big deal, and it might even be a good idea to make them co-agents all of the time, so you don’t have to worry about where you are when you take ill. But the logic behind your original choice of agent might be different during your extended stay.
  2. Do you know whether Arizona’s law is more generous than your home state’s law? Many states still restrict living wills, for instance, to “terminal conditions.” Arizona does not have that limitation. You might want to be governed by Arizona’s more generous statutes when you can — and your lawyer back home might even tell you that she likes using something like Arizona’s language even though your state doesn’t expressly approve of it.
  3. Do you have to use a particular form in your home state? A handful of states make you use something in substantially the state statute’s language, and that language tends to be limiting. Arizona doesn’t require that, and so your health care power of attorney can be more tailored to your individual wishes. Feel strongly about particular medical procedures, or about organ donation, or even about cremation? Arizona lets you put all of that in your health care power of attorney, and you might like to take advantage of that approach while you’re here.
  4. But wait — it’s not all sweetness and light. If you decide to sign a new health care power of attorney and living will while you’re in Arizona, you might have effectively revoked your home-state documents. Better make sure you don’t have to visit the lawyer twice every year — once when you come to Arizona for three months and once when you return home.
  5. Are you sure you’re not an Arizona resident? Even if you are, your out-of-state health care directives are still valid, but as you creep up on 50/50 time spent in two states, you might want to get some advice about which one you really live in.
  6. There’s something to be said for using a form that is familiar to the local medical community, just to save time and reduce the possibilities for misunderstandings. That’s probably not a big deal, but it does argue for using the local forms by default. Truth be told, though, we don’t use the Arizona statutory form for health care directives at all — we think we can better capture clients’ wishes with a more eloquent and less generic document.

You can get Arizona’s generic health care power of attorney, mental health care power of attorney, living will and related forms easily, and free, online. The Arizona Attorney General’s office keeps a collection of forms and instructions, and we direct people to it all the time. Arizona also has a really neat system for keeping your health care directives online, too — and then you can just carry a wallet card with login information for anyone who needs to download a copy.

Forgot to Make New Year’s Resolutions? We Can Help


First we’d like to apologize for not getting this to you last week. We know how hard you were working to prepare some good New Year’s Resolutions. You wanted some that you could actually count on satisfying, that would really be beneficial, and that would make you sound like a mature, responsible adult. We have some; feel free to adopt them now, and assure friends and family that you actually signed them before New Year’s Eve.

Time for “the conversation”

Have you talked about end-of-life treatment issues with your family yet? No? This would be a good time to do that. Any time would be a good time to do that.

We have previously suggested Thanksgiving as a possible day to plan on “the conversation.” That suggestion still holds — but really, any day (holiday or not) would be a good day.

You say you don’t need to broach this unpleasant topic, because your family knows what you want? You’re wrong. They don’t, unless you tell them. They might guess, but they will be guessing. Their guesses will probably be more conservative than your actual wishes unless you give them permission — by telling them what you want.

In fact, you can go further than giving them permission. You can (and should) give them instructions. Tell them what you want, and put it in writing. Sign a living will, a health care power of attorney, or both (“both” is the best approach here).

It’s actually not even enough to sign the advance directives — you still have to have “the conversation.” Why? Because you’re not only telling the person you designated as your agent, you’re also telling the rest of the family. You are telling them what you want, that you’ve really thought about it, and that you really did mean to name your agent as agent. You’re heading off family disputes and possible disharmony. Did we mention that if your family doesn’t know for sure what you want, the result is likely to be more aggressive treatment than what you’d probably choose?

Here’s a radical thought: during the conversation you might also want to listen. You might be surprised to find out that some of your family members have strong feelings themselves. They might be persuasive, or at least give you more to think about.

One anecdote from our cases: some years ago, we dealt with the family of a woman who had signed advance directives. She had named her Arizona daughter as agent. She had expressly instructed that she be kept at home, even if her doctors thought she should be hospitalized or institutionalized. She made it explicitly clear that her entire savings should be exhausted, if necessary, in keeping her at home.

When she lost her capacity to discuss her preferences or reason with visitors, a long-estranged daughter arrived from out of town. She insisted that the local daughter must have persuaded Mom to sign the documents, hoping to be able to stay in Mom’s house as long as possible. She claimed that Mom would never have signed the documents if she had been in her right mind at the time.

The result? A non-family member was appointed as guardian temporarily, while an investigation was undertaken. The guardian, worried about possible liability, moved Mom to the nursing home — where she died a few weeks later, before the final court hearing.

Though Mom signed all the documents she should have, and made her wishes clear, the result was exactly what she did not want. What could she have done differently? If she had talked with (or at least written to) her estranged daughter, would the outcome have been different? Possibly — it seems like the most likely possibility. The lesson? Have the conversation, and include even those family members who will not be in charge of the decisions.

Update your estate plan

This would be a good time to pull out your old will and trust, review them, and schedule an appointment with your attorney. Has the law changed since you signed your will? Perhaps. But more importantly, has your life situation changed? Do your children (now in their 30s, or 40s) really need to have a guardian named, as they did when you signed your will twenty-five years ago? Have you moved, or changed your assets significantly? Are you the rare parent who correctly predicted each of your children’s future capabilities, needs and proclivities?

Once again, “my family knows what I would want” just won’t cut it. Believe us — we see lots of families in litigation over things that might seem trivial. Don’t think it will happen with your family, since everyone gets along so well? We hope that’s correct, but it has not been our experience.

Since you signed your will and trust, have you put one child on as joint owner of your bank account (to take care of things if “something happens”)? Have any of your children gotten divorced, or married, or had children? Do you still want the child who lived close to you fifteen years ago to be your executor and trustee, even though you’ve moved across the country to be near a different child? Have you signed an Arizona beneficiary deed after hearing a presentation, or listening to a friend? All of those things affect, and need to be taken care of in, your estate plan.

Another anecdote from our cases: last year we dealt with the estate of a fellow who moved to Arizona from another state. He had a trust and a will there, and he put his new Tucson home in the trust’s name. Apparently, though, he decided that his trust was now invalid, since he had moved from the other state to Arizona. So he made no changes.

Meanwhile, he got married. One of his children (named in his trust as a beneficiary) had become estranged. He tore up his will (it was invalid anyway, he thought). The result? His new wife ended up with his entire estate, as he apparently intended — but only after payment of several thousands of dollars of court costs and legal fees, and an opportunity for his estranged child to object (she didn’t, thankfully). Meanwhile, if he had talked with a lawyer before he died, he could have spent perhaps 1/10 of what it ultimately cost to take care of his estate.

Insurance update

Do you have enough (or too much) life insurance? How about long-term care insurance? Shouldn’t you talk with someone about your insurance status, and see what needs to be changed?

Long-term care expenses, particularly, have changed a lot in the last few years. Long-term care insurance is a maturing market, which means that older policies need to be revisited — and people who have not gotten around to looking into the policies should set aside some time to do so. Soon.

We don’t give insurance advice directly (except to advise people that they need to get more information). We recommend you talk with a trusted agent, and make sure they have your entire insurance picture. Right after you make that appointment to update your estate plan.

Need more ideas?

Not all of your New Year’s resolutions need to be about legal issues. Two years ago we gave you some other ideas, and we offer them up for your consideration again this time. You’re welcome.

New Thanksgiving Tradition to Consider: The Conversation


You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor  and of course your lawyer kept a copy. Did you think you were done? Because you’re not.

Now it’s time to take care of the most important part of this process. Signing advance health care directives is important (you have gotten that part done, right? What??!! You haven’t? Get to it!). But perhaps more important than the documents is The Conversation.

You need to discuss your end-of-life health care wishes with family members. You need to include the person named as your health care agent. You also need to include the family members not chosen to make the decision. You do not want anyone arguing that “mom can’t possibly have meant to sign that” or “someone talked dad into signing that power of attorney when he didn’t really know what it meant.”

Do you want your wishes carried out? The surest way to accomplish that is to actually tell everyone in your family what those wishes are. Tell them where the documents are, and share copies. Answer their questions. Make sure they know that you know what you’ve signed, and what you want.

That’s the premise behind The Conversation Project, a non-profit organization founded by columnist Ellen Goodman. According to the Project, 60% of poll respondents say that it’s important to make sure they don’t burden their families with tough decisions at the end of life. Still, 56% say they have not talked with their families about their wishes. In our experience, we think that latter figure is inflated; people tell us they have talked with family members, but on closer questioning they usually have not.

When do you have The Conversation? We’re promoting (only half tongue-in-cheek) Thanksgiving Day as the perfect opportunity. The whole family has gathered together, the turkey is taking longer to cook than was planned — it all works to create the perfect opportunity. OK — we know you’re not likely to bring it up this Thanksgiving, but what about the rest of the family weekend?

Need help getting started? The Conversation Project has a conversation “starter kit” to do just that. It gives you some ideas about what to discuss and how to bring it up. Get copies of your advance directives together for The Conversation and just get going.

We hear you say: “my family knows what I want.” No, actually, they don’t. And some may “know” you want something different from what other family members know. How would they know if you don’t tell them? Mind reading? Osmosis? Please don’t assume they do just because they know you.

So this Thanksgiving, try The Conversation (not the Francis Ford Coppola movie starring Gene Hackman, though we also like that one). Not ready to do it that soon? OK, but schedule it, and mention it to your family, and get ready for it. Don’t just shelve The Conversation, thinking you’ll get back to it later.

In the meantime, please, have a healthy, productive and happy Thanksgiving holiday.

Is That Your Advance Directive in Your Pocket?

JULY 14, 2014 VOLUME 21 NUMBER 25

Last week I underwent a small outpatient surgical procedure (I’m fine — thanks for asking). I actually looked forward to the “do you have an advance (medical) directive?” question on admission.

A couple years ago I had another outpatient procedure, and was surprised when the intake clerk asked about my advance directive. “Do I have one?” I asked, rhetorically and with amazement. “Of course I do. I am an elder law attorney practicing in Tucson for nearly four decades. I was involved in the leading Arizona case on surrogate decision-making. I sat on the legislative committee that came up with our current advance directive law, back in the 1990s. Not only do I have an advance directive, I have a darn good one!” “Great,” said the intake clerk — “where is it?” “In the safe at my office,” I admitted, sheepishly. Oops.

Since then the Arizona legislature has approved an online registry system for advance directives. If you are an Arizona resident, you can send a copy of your health care power of attorney and/or living will to the Arizona Secretary of State’s office, along with a form you can download, to get your directive(s) registered. (Actually, there’s nothing on the site that says you have to be an Arizona resident — but we simply don’t know how well it would work if you tried it from out of state.)

Once you fill out the form and send in your copy, you get a registration card back in the mail. It takes a couple weeks. My wife and I did this a few months ago, and so I was looking forward to using the form when I had to go in for last week’s procedure.

“Do you have an advance directive?” asked the intake clerk. “You bet,” I proudly replied, “and here’s how you can get a copy of it.” I handed her my card. “Huh.” she said (she was very expressive). I asked her if she had ever seen a card like that before, and she said that yes, she had started seeing them lately. Good news all around.

How does it work? Your registration card has a website address, a login and a password. Your doctor, hospital, outpatient surgical center, or anyone else with the login and password can download a PDF copy of your advance directive. And you can update the directive any time you sign a newer, better, more current one.

Here’s what mine looks like:


There’s a really nice change in recent years, and one disappointment. We can help you with the latter.

The good news: the current Arizona Secretary of State thinks your name is more important than his. His predecessor had her name splashed across the form and your identification card in type larger than the part that identified you — it was confusing and cheesy. Examining my current card, I can’t even find the Secretary of State’s name, and that despite the fact that the fellow is running for office. Good to see.

The bad news: the card you get back is a flimsy paper wallet-sized card. It isn’t laminated, isn’t durable, is easy to lose. Our offer: if we wrote your advance health care directive, we have a laminating machine that we’ll be happy to use to laminate your card. No cost. Just like the program itself.

Now you Arizona residents don’t have to keep a copy of your advance health care directives with you when  you travel. You don’t need an extra copy stuffed into your car’s glove box. And, most importantly of all, you don’t have to sign a new document when you get to the intake clerk and she asks you where you keep your advance directive. It’s online, and in your wallet/purse.

Want more information? Check out the Secretary of State’s website or, within reason, ask us. If you are a client, we will do whatever it takes to get your card into your wallet. If you’re not a client, we’re still pretty nice, and we’ll probably help you.

You say you don’t have an advance directive? Shame. Get on that right away, please. It really is important.

Do You Need New Documents When You Travel Outside Arizona?

APRIL 21, 2014 VOLUME 21 NUMBER 15

It is late April, and that means Spring is in full bloom in Tucson. Many of our winter visitors (we call them “snowbirds” but not mockingly or disparagingly — at least most of the time) will be returning to Illinois, Missouri, New York, Wisconsin, or other, cooler climes. For that matter, many of our long-time residents and even natives will soon decamp to seashore or mountain, waiting for the heat to ease up.

This annual migration gives us a chance to talk about something we get asked a lot. Surely you need to have signed a health care power of attorney and living will. But do you need to have signed one in each state where you live part time? For that matter, should you sign a state-specific form for every state you visit more than fleetingly? And what about foreign countries — will your Arizona advance directive be valid in Canada, or Mexico, or Europe?

Generally speaking, there is less state-to-state law variation than you might suppose. Your Missouri will is going to be fine in Arizona (though if you’ve moved here from Missouri maybe your circumstances have changed — let us review and update your will. But that’s a different issue.) Your California living trust probably needs very little change for your new Arizona residence. But one area where there is a lot of variation is in advance health care directives.

What’s different? Terminology, for one thing. In Michigan they talk about health care “patient advocates,” and in New York they favor “health care proxies”. In both states they’ll probably figure out what you mean by “health care agent” or “health care power of attorney,” but you’d rather not make the hospital or doctor call the legal staff for an opinion. You’d rather just get good care, and quickly.

Another difference: some states permit broad powers in advance directives, and other states tend to be restrictive. Arizona is in the former camp. As many as half of the states would limit the applicability of your health care power of attorney to circumstances in which you are in a coma or persistent vegetative state; Arizona does not have that limitation, and so your Arizona form is unlikely to include that language. Furthermore, you probably wouldn’t want that restriction in your Arizona document while you’re here — why include a restriction that is not required and might cast doubt on the applicability of your advance directive, after all?

For many of our clients, the choice of agent is partly controlled by who is local and convenient. If you spend your winters near your daughter in Arizona, it might make sense to name her as your health care agent. If you return to Illinois, where your son lives, for the summer, you might want to name him as your agent while there.

There is a growing movement across the country — but not in Arizona — for something called “POLST” (some states use similar-but-different acronyms). That stands for “Physician’s Orders on Life-Sustaining Treatment,” and it is a very interesting and useful form by which you can have a “Do Not Resuscitate” (DNR) order in place before you go to the hospital or nursing home. Arizona has something similar, which is usually referred to as the “orange form” — but Arizona’s form will not work in any other state and no other state’s POLST form will work in Arizona. If you are concerned about resuscitation, you need to have appropriate plans in place in other states where you live part time or visit extensively.

So does all that mean you should have a new health care power of attorney drawn up as you drive across the border into New Mexico, Colorado and each state you go through? Not necessarily.

There’s at least one problem with having multiple forms signed. Under Arizona law, and the law of most states, when there are multiple documents that are internally inconsistent the most recent one is treated as revoking the earlier one. In other words, if you sign a new health care power of attorney as you arrive in Wisconsin this summer, you may have revoked your existing health care power of attorney. When you come back next fall, you’ll need to sign another one. The cycle can be endless, and the year that someone actually needs to make decisions for you will be the year you overlooked the update.

As for travel outside the country — that’s a lot harder to generalize about. In many countries the very concept of advance directives is foreign (that pun was completely intentional). Best advice: look up the country you’re visiting and see what you can find out, and take a copy of your advance directives with you just in case they’ll be helpful.

What should you do about domestic travel? Here are a few thoughts for the itinerant or part-time Arizonan:

  1. Plan for your travel when you first sign your power of attorney. Do you want your daughter to make your health care decisions while you’re here, and your son in Illinois? Tell us and we can draft for that. Do you spend lots of time every year in Virginia? Let us know and we can double-check whether Virginia is particularly problematic (we have — it’s not).
  2. Make sure that you’ve talked with family members about your wishes. Those making decisions for you need to know what you would want. Those NOT making decisions for you particularly need to know — we’ve had lots of cases where the distant family member said, more or less, “Mom NEVER would have said that if she’d been in her right mind.” Tell everyone what you want while you’re clearly still in your right mind, and that will reduce the possibility for conflicts based on where you are, what your documents say (or don’t say) and whose form you used.
  3. In addition to your advance directives, you might want to write some thoughts about end-of-life treatment. The best ones are in your own words, but there are others out there — like the well-known “Five Wishes” document, which you can create, review and pay for online. We would rather you didn’t sign this form, though — we don’t want you revoking your valid Arizona advance directive unintentionally. Customize it, print it out, and bring it with you when you visit us — we can talk through it and adopt those portions you like. Note that even the people who promote Five Wishes identify 8 states where the document does not meet requirements of state law.

If you do travel a lot, or have homes in more than one state, you probably are not a good candidate for a pre-printed advance directive form. If you signed your will (and maybe your living trust), and then filled out a form at the hospital, doctor’s office, church seminar or public forum, we need to see you again — you probably have inadvertently revoked the power of attorney we prepared for you when you first came in. If you haven’t yet gotten around to doing anything about this, get moving. First download the Five Wishes document (see above), or the Arizona health care directive forms, and then make an appointment. Let’s get this done.

(Note: don’t live in Tucson? OK — do everything we say here, but then make your appointment with a local lawyer who knows about this stuff.)

(Further Note: we haven’t said anything here about financial powers of attorney. There is also state-to-state variation in those forms, but the subject is quite a bit more complicated. We’ll take that up in another newsletter one day — when we have more courage and time.)

Here’s a Project For You: Write Your Own Obituary

APRIL 14, 2014 VOLUME 21 NUMBER 14

I have a new aspiration. I want my obituary to appear (at the appropriate time, of course — not before) in someone’s blog, newsletter, book or other publication as “one of the best obituaries ever” — maybe even to “go viral.” I’m just not sure I can count on my family to understand the importance of this goal. Maybe I need to write my own obituary now.

Turns out that idea is not novel. The recent death of Walter George Bruhl, Jr., in Florida highlighted the trend. Read Mr. Bruhl’s obituary, and the story about its preparation, and you will have to acknowledge that you wish you’d met him.

Of course excellent obituaries can be written by family members. Consider the moving and excellent obituary of Harry Weathersby Stamps, who died in March, 2013, in Mississippi. And note that it appears online on a site called “” — the internet is truly a wonderful invention (one wonders whether Al Gore might be working on his own obituary). But back to Mr. Stamps: his wonderful obituary was written by his daughter, Amanda Lewis, a Texas attorney with a wonderful sense of humor and fond recollections about her father’s strengths and eccentricities. There are definitely benefits for family members who write memorable obituaries, but still there is something to be said for preparing your own.

So how to get started with writing one’s own obituary? It turns out that there are plenty of prompts, suggestions and ideas available. One online resource for the self-written obituary project suggests the question: “what do I want people to remember about me?” as a straightforward prompt. The result need not be humorous or whimsical — it might be heartfelt and moving (like actor James Rebhorn’s self-written obituary). It might be wry and revealing (like engineer Val Patterson’s contribution to the genre). Maybe you prefer mostly factual, with the occasional sly aside (like former Marine and ad man John E. Holden — whose short obituary generated enough interest to occasion a longer, much more detailed reminiscence from his local newspaper).

Something similar happened with Jane Catherine Lotter’s self-written obituary. After her death in Seattle in 2013, her obituary “went viral” and resulted in a New York Times article about her life, her death and her writing.

Here’s an interesting idea: try starting with a very simple statement, limited to just six words. That’s the premise behind “Not Quite What I Was Planning,” a 2008 collection of “six-word memoirs” from various contributors. There are even follow-ups: “It All Changed in an Instant” and other volumes in the series.

Most people, though, will want to write a longer version. Advice from one source: just get started. According to Obituary Guide (a resource for writing your own or a loved one’s obituary), getting your own on paper can be a help for family members and a chance to say what you want said about yourself. It also can be part of your end-of-life planning, including your living will, health care power of attorney, durable financial power of attorney, will and other documents.

It turns out that the self-written obituary is a trend. You can even order a book to help you get started (called, cleverly, ObitKit) and join “the hottest thing in dying.” Happy writing.

More Definitions for Estate Planning Terms


Last week we gave you short definitions of some common estate planning terms, like “will” (and “pourover will”), “trust” (including both “living” and “testamentary” trust), “grantor trust” and more. This week we want to continue that project with another batch of common terms:

Durable power of attorney — sometimes called a “financial” or “general” power of attorney. The key is that the power of attorney continues (or becomes effective) even if you become incapacitated. This is simultaneously the most important and most dangerous document that most people will sign with their estate planning. Why dangerous? Because it gives such broad, mostly unchecked power to someone else to handle your finances.

Living will — a document by which you give directions about how you would like to be cared for (or what care you would prefer not to have) at the end of life. That’s not the only time the living will is effective (or important), of course, but that’s what people usually think of. This is the document you might sign to direct that you not receive artificially-supplied food and fluids at a time when you are no longer able to make decisions yourself. OR you might direct that you DO want food and fluids (and/or other care) provided in such a situation.

Health care power of attorney — you can designate someone else to make medical decisions for you if you become unable to make or communicate decisions yourself. That person is called your “agent” or “attorney-in-fact,” and the document that names them is your health care power of attorney. That’s the term usually used in Arizona, by the way — other states might use different terms for the same concept.

Advance directive — any document by which you provide for medical decision-making in the event that you become incapable is called an advance directive. The most common advance directives are health care powers of attorney and living wills, but there are others. In Arizona, for instance, you might have an advance directive about mental health care decisions, or rejecting resuscitation measures, or even giving someone authority to decide when you should stop driving. These are a little bit more specialized, and you should talk with your attorney about them.

UTMA accounts — UTMA stands for “Uniform Transfers to Minors Act”, and it refers to a law that has been adopted in some form in every American state. It amounts to a simple sort of mini-trust set out in the law — rather than pay to have a trust set up for a minor, you can simply make a gift to a UTMA account. That makes it easy and inexpensive. It also means that you are stuck with the terms of that legislative trust, but it’s one way to make gifts to children and grandchildren.

529 plans — as long as we’re writing about children and grandchildren, we should mention these popular methods of making gifts. “529” refers to the section of the Internal Revenue Code which both permits and governs these accounts. Once again, it is a simple and inexpensive way to make a gift to your child or grandchild, provided that the primary purpose of your gift is to pay for future educational costs. Ask your attorney (and also your accountant and financial planner) for more information and direction if this idea seems appealing.

“Crummey” trusts — sometimes called “irrevocable life insurance trusts” (or abbreviated as ILITs), these trusts are a method of transferring assets (often, but not always, life insurance) to future generations without making the gift outright and absolute. The nutshell version: you make a gift of less than the annual exclusion amount (see below) to a trustee, and the trustee notifies the beneficiary that they can take out the gift. When they don’t remove the gift, for tax purposes the transfer is treated as having been made by the beneficiary, so the gift is deemed to have been completed. These trusts are often used to allow gifts of the annual premium amount for life insurance, or to make gifts without giving the beneficiary a chance to misspend the gift.

Annual gift tax exclusion amount — there is a tremendous amount of misunderstanding about this concept. In 2014 you can make a gift of up to $14,000 to any person without having to explain yourself to the Internal Revenue Service or anyone in the federal government. Your spouse can do the same thing — even if it is your money that funds the gift. You (and your spouse, if he or she participates) can do the same thing for as many individuals as you’d like. Here’s the misunderstanding part, though: if you give, say, $20,000 to one person, that doesn’t mean you pay an gift tax, or you have to get government approval. It just means you have to file a gift tax return — and if the amount you total up from all of those returns over your lifetime gets to $5,000,000 (it’s actually more than that, but we’re trying to make this simple) then you might have to pay a gift tax. This $14,000 figure, by the way, has absolutely nothing to do with Medicaid eligibility (yes, you can make a $14,000 gift — but it might make you ineligible for Medicaid even though it’s blessed by the IRS).

And, finally, this perennially popular concept/term:

EINs — “Employer Identification Numbers” are issued by the Internal Revenue Service for probate estates, trusts, and other entities that might have to file income tax returns. When someone asks for your “TIN” they mean that they want either your individual Social Security Number or the appropriate EIN. Even if the trust or estate does not have employees (and even if it never will) it still gets an Employer Identification Number (EIN). Does your trust need to have an EIN issued? That is an enduringly popular question, which we have addressed several times before (and undoubtedly will again).

Improving Communication Between You and Your Doctor

Your doctor is busy. She is seeing dozens of patients every day, and their insurance plans force her to get those patients taken care of and out the door quickly. By default, she may limit her contact to the minimum necessary to diagnose and treat.

But you want more. You want to know what is really going on. You want to know how you can help, and whether you should be adjusting your diet or your habits. You want to understand the interrelationship of different medications, and the side effects of each. You want to hear about alternative treatments, what the doctor is looking for, what you can expect.

How are you going to get that information from your smart, helpful, friendly but very busy doctor? By talking with her, of course.

Easier said than done. In a perfect world you would have all the tools you need — well, actually, in a perfect world you wouldn’t need a doctor at all, but we’re some distance from either level of perfection. But maybe a new publication from the National Institute on Aging can help.

Talking With Your Doctor: A Guide for Older People” is a practical pamphlet designed to give you some tips about how to communicate with your physician (or, for that matter, your physician’s assistant, nurse practitioner or other health professional). It comes complete with some worksheets and checklists to help you organize yourself for your initial or periodic doctor’s visit. Do you have your advance directives with you? Have you listed all the medications AND over-the-counter AND herbal remedies and supplements you take? Do you have your insurance card, the names and phone numbers of specialists or other doctors you see, your eyeglasses and hearing aids with you?

Some practical tips from the NIA publication:

  • “Consider bringing a family member or friend.” It might be easier to remember the important items on your list if you have organizational and moral support. A savvy assistant can help you remember what the doctor tells you, too.
  • Start by locating a doctor you can talk to. If you are uncomfortable about getting information from your current doctor, or unable to get her to understand how important it is to you to have a discussion rather than a lecture, consider changing doctors. Interview a prospective new doctor’s staff on the telephone — after all, they are the ones you will deal with most. Check your prospective doctor’s credentials and special training. Schedule a first meeting (you may have to pay for it if your insurance doesn’t cover it) and pay attention to how well the doctor works with you and how comfortable you feel about the exchange of information.
  • Share information about your habits, as well as your medical care and conditions. In order to understand what is going on with you, your doctor must know whether you smoke or drink, whether you engage in risky behaviors, how much you sleep each night, whether you have an active sex life. Be candid and forthcoming with your doctor; she will be better able to advise you if she knows what you are doing.
  • Perhaps you are helping care for (or are concerned about) an elderly family member or friend, or one with a disability. The NIA booklet can serve as a guide for you, as well. You can use the checklists and worksheets to collect and organize information, and to help you keep track of questions you need to address. The tips for communication with your doctor will work every bit as well when the patient is someone you are caring for, or care about.

    You can order printed copies of “Talking With Your Doctor” for free. You can also download it online and print out only those portions you need — like the worksheets, for instance. It could help you get a better handle on your medical treatment, or the treatment of someone you care for or about.

    Online Video Gives Advice On How to Write Your Living Will

    MARCH 1 , 2010  VOLUME 17, NUMBER 7

    Everyone should sign a living will and (perhaps more importantly) a health care power of attorney. You knew that already, right? But how should one go about preparing a living will?

    The answer is deceptively simple. Forms are widely available online, from health care providers and from aging advocacy organizations (to name just a few places). One of the best in Arizona (because it is well-formatted and easy to get to) is offered by the Arizona Attorney General’s office. Those forms are generally fine, though obviously neither comprehensive nor customized. Your lawyer can (and probably will) prepare a more extensive and personalized document as part of your estate plan — your will and (if you create one) your living trust.

    Be aware of state variations. Your state may refer to the health care power of attorney as a health care “proxy,” or call your agent a “patient advocate.” You will want to make sure any forms you use are appropriate for your state — that may not require the involvement of a lawyer, but your estate planning lawyer will be able to address the same questions while preparing your estate plan.

    Most people will want to sign both a living will and a health care power of attorney, though the common practice in many states (including Arizona) is to incorporate both into a single document. Depending on your state there may even be other kinds of “advance directives” to consider — like a mental health power of attorney, or an authorization for autopsy, organ donation and/or cremation (Arizona permits all of those additional directives).

    More important than the particular advance directive you sign, however, is the information you provide to family members. That’s the point of a new online video offered (in two parts) by retired University of Arizona law professor Kenney HeglandPart 2 stands alone, but the two segments really work better together. Incidentally, Prof. Hegland (along with Fleming & Curti partner Robert Fleming) is the author of New Times, New Challenges: Law and Advice for Savvy Seniors and Their Families, and his advice is practical as well as legal.

    Your advance directives are most useful if they are highly personalized. Clear directions and full information will increase the likelihood that your wishes are carried out, and provide your family with both comfort and direction.

    Professor Hegland’s two-part video is at once entertaining and useful. He suggests that you write out your thoughts on end-of-life care, and provide your loved ones with explanations along with your actual instructions. You can also address related issues — what you want your obituary to highlight, who should speak at your funeral services, and more.

    There are a handful of useful video resources available online addressing living wills and advance directives. Oddly, few of them offer practical advice about writing or signing the documents themselves. Most are promotional pieces by attorneys or online legal forums, describing the meaning and perhaps the importance of the documents. Three notable exceptions you might look at if you like Prof. Hegland’s submission: (1) a touching description, complete with family interviews, of the care forced upon Robert Wendland and his family when he was critically injured without having signed an advance directive — in two parts, (2) the cute but not terribly informative class project of a student named Maha, performed with a CPR dummy, and (3) the Arizona Attorney General’s dramatization about life care planning, including living wills and advance directives (to play this video, go to the AG’s “life care planning” page and click on the video link under “Life Care Planning For Everyone”).

    ©2015 Fleming & Curti, PLC
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