Posts Tagged ‘living wills’

Want to Make Sure Your Advance Directives Work? Talk to Your Family

FEBUARY 6, 2017 VOLUME 24 NUMBER 6
This week Fleming & Curti held another one of our periodic seminars for clients and the public. This one was different — rather than us lecturing on issues of elder law, we invited a guest speaker. Harriet Warshaw, Executive Director of The Conversation Project, led a lively discussion about health care directives, planning for how you want to live at the end of life, and how to talk with family members about your wishes.

From its headquarters in Boston, The Conversation Project seeks to spur families to talk about end-of-life wishes. Their clear message: it’s not enough to sign your living will, health care power of attorney and related documents — you need to let people know what you actually want.

Which people? It should be obvious that the person (or persons) named in your advance directives to make decisions for you need to know what those decisions should be. It might be less obvious, but is equally important, to let others know what you have signed, whom you have designated, and what care choices you want made.

That’s where The Conversation Project steps in — with guidance, worksheets, and conversation starters. Are you trying to figure out how to raise questions about end-of-life care with your children? Or, perhaps, with your parents? It can be difficult to approach the discussion, but it should be undertaken — and refreshed periodically (people’s life experiences, views and preferences do change over time).

One great tool for starting The Conversation: the Project’s “starter kit.” It is just what the name implies: a way to start the conversation. It’s free, easily downloaded, and available in a half-dozen languages.

Ms. Warshaw’s presentation included a number of important points:

  • The Conversation isn’t really about how you want to die — it’s about how you want to live your life for its last segment. What do you (or the person for whom you are making decisions) want to be surrounded by? For that matter, whom do you want to be at your side? Do you anticipate living out those last moments at home, or in a medical setting? According to Ms. Warshaw, about 70% of people say they want to die at home — but about 70% actually die somewhere else.
  • Talking with your children about your end-of-life wishes may seem hard, but starting The Conversation is really a gift you can give to them. You can relieve anxiety, absolve guilt and have a meaningful discussion about life, death, and what’s important to you — and to them.
  • While most of the people focusing on end-of-life planning may be older, young people should be thinking about the issues for themselves, as well. One of the things that can easily happen when a senior begins The Conversation is that a family can learn and discuss what they want for themselves, as well.

We all have our own stories, noted Ms. Warshaw. True to that sentiment, she shared hers — and in doing so she described how some people are good at starting The Conversation and others need prodding.

Our view: every adult should sign some combination of a living will (a document expressing your preferences) and a health care power of attorney (giving someone the authority to approve or refuse medical care on your behalf). That is the threshold consideration. But once those documents are signed, it is not enough to file them away. You need to talk with the person named as agent on your health care power of attorney, and actually discuss your wishes with him, her or them. You also should talk to other people in your life, even though they are not named — they are the ones who might derail your planning if they do not understand what you meant to do.

Most people should also think about advance directives for mental health care planning and planning for changes in their ability to drive. Some should even consider whether they want to take steps to prevent cardiopulmonary resuscitation, or artificial provision of food and fluids, or even antibiotics. And some will want to figure out how to make sure that every possible medical procedure is undertaken. Every person is different, and that’s one of the reasons why it’s so important to discuss your wishes with family, friends, medical providers, religious counselors and even helpful (or nosy) neighbors.

We love The Conversation Project. It is a great way to help encourage individuals to talk with their families about their wishes. It is also a great way to encourage family members to start The Conversation when they are likely to be the ones called on to make decisions for a parent or other loved one.

We enjoyed having our first guest presenter for “Trust School.” Our next session will be an opportunity for us to explain to clients, their family and invited guests what is actually involved in administering trusts and estates — not a sales session so much as an exploration of the mechanics of estate planning and the choices facing every client. That session will be in mid-April, and we’ll be sending out invitations to clients a couple weeks in advance.

Dad (Mom), We Need to Talk

FEBRUARY 22, 2016 VOLUME 23 NUMBER 8

This week, a letter from Fleming & Curti, PLC attorney Amy Farrell Matheson, addressed to a father (not, as it happens, her father so much as your father):

Dad, we need to talk:

We love you and want the best for you. Over the past few months, we’ve noticed some things that are concerning to us. It makes us wonder if we should begin giving you some extra help around the house.

For example,

  • We have found late notices and even shut off notices from the electric company and the water company; this makes us worry that your bills aren’t getting paid on time. Your filing system was always so organized, but now we find papers jammed in every which way. It’s hard for us to tell what bills have been paid.
  • You and Step-Mom have always kept a lovely home, but now there are newspapers and unopened mail piling up, and the yard hasn’t been tended to. The refrigerator has expired and rotting food in it.
  • And your car has a scrape along one side that we don’t remember seeing before.

We respect your privacy and we understand that it’s important to you to manage your household as you see fit. If there are some things that we could do to help lighten the load, we would like to help.

It would help us if we had a better understanding of how your finances are arranged, so that if we needed to step in and help out, we could do so easily. For example, would you like one of us to arrange it so that we can view your banking accounts online? That would allow us to help you balance your checkbook and avoid bank fees for returned checks. We could help you arrange for automatic payments for utilities, rent/mortgage, and insurance, so that you aren’t having to pay late fees. We could remind you to take the required distribution from your IRA this year; you know there’s a penalty for that if you don’t.

One of us could help you prepare your income tax returns, or help you assemble the documents that you will need to take with you to the accountant.

We have been thinking about when Aunt Bertha fell and broke her hip, and how hard it was for her kids to figure out how to pay her bills while she was in the hospital. There was a lot of stress and some hurt feelings because none of the kids knew who was in charge. Everyone had a different idea of how to take care of Aunt Bertha. And the bank wouldn’t talk to any of the kids without a power of attorney. As uncomfortable as it might be for you to open up to us about these things, it would really be better to have a discussion about what you want, at a time when it isn’t an emergency situation.

We’ve been to see our lawyer to get our own estate plan updated. It reminded us that we know very little about what you’ve planned. For example, who would you want to speak for you, if you had a health emergency and the doctors needed information? Have you selected someone to handle your finances if you aren’t able to – have you prepared a durable financial power of attorney or a trust? Who is your attorney? Where should we look for copies of your estate planning documents if we needed them?

We’ve been to see our financial advisor for a “tune up.” It’s been a while since we took a hard look at our investments and our plans for retirement. Do you still have the same financial advisor you have been using for years? Are you happy with him or her? Do you have questions about how your money is invested?

We are so thankful that Step-Mom has come into your life. You were so sad when Mom died and it’s good to see you happy again. We want to respect the arrangements that you and Step-Mom have made, but we’re not certain what you are expecting from us, and what you have agreed with Step-Mom. If there were a medical emergency, who would speak for you? Step-Mom or one of us? Do you and Step-Mom have an agreement as to how you handle household expenses? Did you prepare a prenuptial agreement before you got married? Do the two of you have a trust? Do you have joint accounts, or do you keep your money separate?

What can we do to help you stay in your home as long as possible, and to be comfortable, safe — and happy — there?

The Myth of the Simple Will

JUNE 15, 2015 VOLUME 22 NUMBER 22

“I don’t want anything complicated,” said our new client. “I just want a simple will.”

For almost four decades, we’ve been waiting for the client who wants a complicated will. We’re still waiting.

We hear the “I only want a simple will” request often. What clients really mean, of course, is “I want a cheap will.” That is, they don’t want to pay a lot for the legal advice or preparation of elaborate documents.

Our favorite variation is the client who wants a simple will, then tells us their assets are straightforward and their family situation ordinary. You know — the half-interest in a summer cabin in another state, the oil and gas interests in two other states and the closely-held family corporation that is worth somewhere between $1,000 and $10,000,000. And family situation? You know — one child has a developmental disability, another a drinking problem and the third is married to a spendthrift. But we’re just going to disinherit one, split things between the other two and trust them to work everything out.

We send a questionnaire to our prospective estate planning clients, so that we can figure out at least some of the possible issues during our first meeting — which is much more productive if we have the information at hand. Clients sometimes show up without having filled out the questionnaire, since they aren’t sure they want to hire us (hah! who wouldn’t want to hire us?) and they don’t want to go through the trouble of collecting information. More dangerous, though, are the clients who intentionally leave some of their assets off the questionnaire — in a misguided attempt, we suspect, to minimize the cost of their estate planning. That’s a little like not mentioning to the dentist that you have a persistent and painful temperature sensitivity on one tooth, hoping that it won’t need any expensive work.

Why do we even care about what assets you own? Isn’t it because we can charge you more if we know how wealthy you are?

No.

We need to know about your assets to figure out whether you have an estate tax issue. Are you pretty sure you aren’t worth the $5 million that is required before federal estate tax concerns? OK — but what about state estate taxes? Though Arizona doesn’t have one, the state where you have that summer cabin might impose one. And have you added in the face value of your life insurance policies? Also the trust your grandfather left for you, which you don’t think of as “yours”? Also the possible inheritance from your parents? Those questions are all on the questionnaire, so that we can discuss them with you.

One of the principal questions we are going to talk about with you is whether you should have a living trust. Don’t worry — we’re not going to order you to do anything. But we do want to be able to give you a realistic estimate of the cost of probating your estate, and what you might reasonably do to avoid or minimize that cost. Without good information, we can’t give you either estimate.

There are real costs associated with choosing a “simple” will. We want to be able to estimate those for you, so that you can make informed decisions. By the end of our initial conversation, we will almost certainly be able to give you a flat-fee estimate of the cost of preparing your estate plan, with at least a couple variations for you to consider. Then you can decide how much simplicity you can afford.

How often do our clients end up with what might be called a simple will? If we get to define “simple,” our estimate is about half the time — or perhaps slightly less often than that. But even clients with those simple wills also have financial powers of attorney, health care powers of attorney (with living will provisions) and an instruction letter; the entire product of our representation will almost always amount to at least a dozen pages of lawyer language. We’ll also provide a translation/guide to the documents, and we are very interested in helping you to understand the options, your choices and the documents themselves; we don’t charge more for answering questions, and we like to get the opportunity.

A word about flat fees: almost all of our estate planning is done on a “flat-fee” basis. We will quote you a fee in our initial consultation, and that’s what we will charge. Do you need four drafts and extensive revisions? No additional cost. Do you love the first draft, and need no changes? Great — we got it right. But we don’t reduce our fee for doing a good job on the first pass, either. We think that arrangement makes it easy and comfortable for both of us. You get as many appointments, revisions and discussions as you need. We get the comfort of knowing that we heard all your concerns and questions, and that we’ve had an opportunity to address everything.

Even a short, inexpensive will is not simple. It is a profound document, and it isn’t even possible to figure out what it ought to say until we’ve talked through some of the issues.

Oh, and whether your estate plan is simple or complex, inexpensive or less inexpensive, it needs to be reviewed and (probably) revised every five years or so. But that’s a different concern we need to grapple with.

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.

New Thanksgiving Tradition to Consider: The Conversation

NOVEMBER 24, 2014 VOLUME 21 NUMBER 43

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:

AdvanceDirective

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.)

More Definitions for Estate Planning Terms

FEBRUARY 10, 2014 VOLUME 21 NUMBER 6

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).

Some Thoughts About Guardianship and Conservatorship in Arizona

NOVEMBER 14, 2011 VOLUME 18 NUMBER 39
Let’s talk about guardianship and conservatorship proceedings. Before we do, though, let’s remember a couple of important principles:

  1. We only know about Arizona guardianship or conservatorship. Well, OK — we might know a thing or two about other states’ rules and procedures — but we only practice in Arizona. Our observations are not universally applicable. They may not even be universally applicable inside Arizona’s borders.
  2. As always, we simply can’t give specific case-based legal advice here, and you should not rely on this newsletter (or anything you read online or in books) to resolve your case. This is big-picture stuff. We can and do write about how the system works, what the rules look like, and what you might expect if you are involved in a guardianship and/or conservatorship matter in Arizona. Don’t expect to print out our articles, take them to court and argue with the judge, though. She won’t appreciate it, and neither will we. Plus it won’t work. Get good legal advice.
  3. One thing we’ve learned from years of law practice: people think they understand their own cases, but they get blinded to the nuances (or maybe they aren’t told everything about the contrary evidence or opinions) and tend to overgeneralize. We don’t think that means they are stupid, or liars — they are just trying to put the best face on their case, and that’s human nature. But it also means that if you say “aha — he hit the nail on the head and that’s exactly what my worthless brother is trying to do” we’d be likely to tell you (if we were your lawyer): “slow down. It’s not that clear.”
  4. We have written a lot about guardianship and conservatorship. Here’s one of our better (and most comprehensive) articles, a White Paper on guardianship and conservatorship. But it’s a difficult and confusing topic, with lots of information — and misinformation — out there.

Disclaimers aside, let’s talk about guardianship and conservatorship. Let’s start with some definitions of terms.

In Arizona, the word “guardianship” is applied to the court proceedings instituted to acquire legal control over another human beings’ person. In general terms, a guardian is authorized by the court to make placement and health care decisions for that other human being. Not every state uses the same word. Not every state has the same process to get a guardian (or whatever they call the office) appointed. But every state does have some kind of court proceeding in which a person can be appointed to manage the health care and living arrangements of another person.

In Arizona, the word “conservatorship” is applied to the court proceedings instituted to acquire legal control over another human beings’ finances. A conservator usually is authorized by the court to handle checking accounts, real estate, brokerage accounts, businesses, vehicles, horses, airplanes, family photographs, oil and gas leases — you name it. Just to keep the confusion level high, not every state calls this type of court-appointed person a conservator — some, in fact, call them guardians. But in Arizona, the person managing property and finances is a conservator.

Neither guardians nor conservators are “powers of attorney.” In point of fact, powers of attorney are pieces of paper, not people at all. But now we quibble. The person named to manage your property and/or your person in a power of attorney is properly called your “agent” or your “attorney-in-fact.” A guardian or conservator is neither an agent nor an attorney-in-fact. They usually have authority over agents and attorneys-in-fact, though it may require separate court action to make that clear, and it may be possible for the court to determine that the agent (or attorney-in-fact, if you prefer hyphenated names) still has authority even after appointment of a guardian and/or conservator.

Who can have a guardian appointed? Someone who is incapacitated. Their incapacity can be based on their age (minors — those under age 18 — are automatically incapacitated under Arizona law unless they are “emancipated”) or their circumstances. Generally speaking, parents are the natural guardians of their minor children, so they do not need to go to court to secure guardianship. The same is not true for any class of adults. So if your 18-year-old child has a lifelong disability that makes him unable to make responsible decisions, you do not automatically shift from being his natural guardian at 17 to being his legal guardian at 18. A court proceeding is necessary. Same thing if your husband or wife becomes incapacitated — you may need court proceedings to become guardian (if there is no power of attorney and there are things that need to be taken care of). “Incapacity” for adults requires a court showing of (a) a mental, medical or other condition that (b) affects the ability of the person to make and communicate responsible personal decisions and (c) makes it difficult or impossible for them to provide their own food and shelter without assistance. It is also necessary to show that (d) the appointment of a guardian will actually help accomplish that goal.

Appointment of a conservator is based on similar, but slightly different, grounds. First, minority is always considered a legally disabling condition, but parents are not the natural conservators of their children in the way that they are natural guardians. That means if a minor child comes into money, even if they live with both parents and all are harmonious and responsible, there is no way to manage that money without going through the conservatorship process. If an adult becomes unable to manage their money in order to prevent its waste or dissipation, they may have a conservator appointed, as well. Frankly, the definition of when a conservator can be appointed is a great deal less precise than that for guardianships, which can sometimes lead to problems.

An important reality for family members and friends to understand: if a guardianship and/or conservatorship proceeding is initiated, the court has been invoked and will not later simply step aside to let concerned — even appropriately concerned — family members take over. Once the courts are involved, they tend to stay involved.

That means that the cost of securing guardianship and conservatorship can be high. In Arizona, a lawyer is automatically appointed to represent the person who is alleged to be in need of a guardian or conservator. A medical report is required. A court-appointed investigator must go to the residence, conduct an investigation and file a report. There are significant court costs involved. Plus the process is complicated enough that the petitioner is almost always going to hire an attorney. That attorney’s bill is likely to approach half the total cost of getting the guardianship or conservatorship set up.

Much has been written, spoken and broadcast in recent years about the high cost of guardianship and conservatorship. The natural tendency of the system has been to make it more difficult to get guardians and conservators appointed, and to require them to provide more information, more frequently. Though that may be a positive development, it has the (presumably unintended) effect of making the process not only more difficult, but also more expensive.

So — guardianship and conservatorship can be difficult, expensive, even ineffective. Not always, of course, but there is a possibility and it proves to be the case too often. What can beleaguered family members do?

Most lawyers practicing in the field spend the first portion of any contact with a new client talking about how to avoid guardianship and conservatorship proceedings. Did your family member sign a health care power of attorney, a financial power of attorney, a living will, a living trust? Are there other ways to get done what needs to be done? What bad things will happen if we (that is, the family and the lawyers acting together) simply do not file a guardianship or conservatorship proceeding, even if one is warranted? Are there ways to get agreement from all the family members in advance, in order to hold down legal costs?

One important concern, at least in the case of adult guardianship and conservatorship: we will ultimately need to be able to prove that your family member has a medical, mental, emotional or other problem that prevents them from making their own personal or financial decisions. We will need medical evidence. Have you spoken with your family member’s physician, or psychologist, or other member of their treatment team? Can you get a letter from that person describing diagnosis, prognosis and any functional limitations? Without that, we may not be able to proceed. With that in hand, though, the process may be significantly streamlined.

Getting guardianship or conservatorship can be expensive, emotionally wrenching, and sometimes even ultimately unsatisfying. Sometimes, however, it is absolutely necessary. We just need to be sure you are prepared for the cost, the procedures, the limitations, and the possibilities in this type of legal proceeding. That’s why you hire a lawyer, after all.

©2017 Fleming & Curti, PLC
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