Texas Estate Planning

What is National Healthcare Decisions Day?

“Healthcare decisions,” might sound like some far-off bridge you’ll cross when you get to it, but the reality is that our health is unpredictable. We really don’t know when healthcare decisions will need to be made or if someone else will need to be making them for us. 

Over the last few years, people are seeing the importance of getting a plan in place that will protect them, their family, and their assets. Scenarios in which we’re unable to make our own healthcare decisions are not easy to think about, but they are important to discuss with people that you know and trust, the people that will most likely have to make those difficult healthcare decisions on your behalf. 

National Healthcare Decision Day (NHDD) was founded in 2008 by Virginia-based health care lawyer, Nathan Kottkamp, because he saw the pitfalls in our healthcare system that occur when people fail to discuss their healthcare wishes or have a plan in place. He chose April 16th to remind us that even though it’s tax season, there are some other human experiences we can be certain to face. 

But National Healthcare Decision Day goes far beyond our “last wishes.” It is about making sure someone knows what we value so that they can confidently make decisions for us if the need ever arises. It can be daunting to think about someone else having the final say in our health care, but imagine being the one making those decisions and not having the slightest clue of what the person in the hospital needs or wants. 

 

Give your loved ones the confidence that they’re making the right decision.
Not only is it important to communicate your wishes to your friends and family, it is often necessary to outline them in a legally binding document (or two). An Advance Directive, often referred to as a “Machines or No Machines Document,” is a legal document in which you explicitly state what type of medical care you’d like under certain circumstances. 

But it’s impossible to predict exactly what your circumstances are going to be, so take April 16, National Healthcare Decisions Day, to have these conversations with the folks who need to know. Check out The Conversation Project’s “Conversation-Starter” guides on their website. The Conversation Project recommends discussing what you value in your life in order to better understand what to prioritize in the event that you become incapacitated. These broader conversations help prepare your loved ones for unpredictable medical events, as opposed to only discussing very specific circumstances that might not ever occur. 

Another legally binding document that can be helpful in ensuring you receive the care you desire is called a “Medical Power of Attorney.” If you don’t have this document in place, then your state will defer to their laws which dictate who will make your medical decisions in the event that you become incapacitated. For instance, if you’re married, more often than not, your spouse will be the one to speak on your behalf. Getting a Medical Power of Attorney not only allows you to name whomever you wish to speak on your behalf, but also allows you to name alternates in the event that your initial agent is not able to act at the time or in the place you might need them to. 

 

Celebrate National Healthcare Decisions Day– start the conversation with your loved ones.
For healthcare decisions, it can be very beneficial to have your wishes in legally enforceable documents because doctors often prefer to take every measure possible in order to keep you alive. And while this is a noble stance for doctors to take, there are certain circumstances in which this approach may be distressing for you and your loved ones. 

Celebrating National Healthcare Decision Day with honest conversations about your values can bring peace of mind to you and your loved ones. It might be difficult to begin such a conversation, but it pales in comparison to the difficulty of making healthcare decisions for someone else without any directions. 

Why A Living Trust and a Living Will Might Be Part of Your Estate Plan

There are several different legal documents that your estate planning attorney can prepare for you to direct how you want health care to be provided. The Medical Advance Directive often refers to a Living Will, but the category also includes medical durable powers of attorney, cardiopulmonary resuscitation (CPR) directives, Do Not Resuscitate (DNR) orders, Medical Orders for Scope of Treatment (MOST) and other directives regarding your medical care in the event you have a medical crisis, a terminal medical condition and just before or after your passing. The article “About the Law” from The Villager describes these important issues in detail.

In some states, a Living Will is known as an Advanced Directive for Medical/Surgical Treatment. This document tells medical professionals how you want to be treated, if you are suffering from a terminal condition that is neither curable nor reversible, or if you are in a coma, also known as a “persistent vegetative state” and cannot speak for yourself. It’s referred to more commonly as a Living Will and is signed with the same type of formality as a Last Will and Testament. Like your will, it must be signed in front of two witnesses and it must be notarized.

The Living Will is used for two situations. One is a terminal condition, where the use of life-saving procedures will only postpone death, but not promote any healing that would lead to a recovery. The second is in a persistent vegetative state, which must be determined by medical professionals. There are three choices for the family: one is to forgo life-sustaining treatment and let the person die. The second is to accept life-sustaining treatment, but only for a limited period of time. Often this is to allow family members to gather to say their farewells. The third is to continue life-sustaining treatment.

A person may express their wishes for their care and also give permission to certain persons to talk with their doctor. This is made necessary, due to the HIPAA act. Otherwise, the doctor would legally not be permitted to discuss the patient’s care with unauthorized people.

As long as you are able to make your own medical decisions, you can determine what treatments to receive, or which treatments you do not wish to receive. The goal of the Living Will is to allow you to express your wishes, if you have lost the ability to communicate.

Other estate planning documents that you’ll need are a will, to distribute your property, a financial or general power of attorney, so that someone you name can make decisions and take actions on your financial affairs and, depending upon your situation, a trust.

Because the laws governing living wills and estate planning are set by your state, you’ll want to speak with an estate planning attorney in your community. They’ll help you determine how you want your medical care to proceed, guide you in clarifying your wishes for your family and create the necessary legal documents to fulfill your wishes.

Reference: The Village (July 3, 2019) “About the Law”

Estate Planning Review for 2019

Your estate plan has a big impact on your finances and should be considered as important as your investment portfolio, says Wealth Management in the recent article “Eight Simple Estate Planning Review Items for 2019.”

Here are the eight items that need your attention:

Beneficiary designations. When was the last time you checked these? Beneficiary designations are usually looked at when an account is opened, and often that’s the last time people see them. Look at beneficiary designations for tangible assets, like homes, cars or collectibles. Check legal documents, including bank accounts and insurance policies.

Digital asset designations. This is a relatively new area, but very important. Even if you don’t own any cryptocurrency, chances are good you have assets like photos, reward points, websites and more. Each social media platform has a different policy for how accounts are treated on the death of the owner. You’ll need an inventory and may want to use an online service for managing your digital assets after you die.

Trust funding. This is where many estate plans fall apart. Funding trusts often requires changing titles on bank accounts, homes and other assets into the name of the trust. Major purchases, like a boat or second home, also need to have their titling corrected, so they correspond to trusts.

Documents for adult children. When your children turn 18, they are legally adults and you do not have the legal right to get information or make decisions on their behalf. If you don’t have HIPAA releases, Power of Attorney, and other documents, you may find yourself unable to help in an emergency.

Keep up with life changes. Review your estate plan with an eye to changes in your life: births, deaths, marriages, divorces, big purchases, etc. If you haven’t met with your estate planning attorney or had a phone conversation in a few years, make an appointment now for a review.

Secure photos and memories. How many times have we watched dramatic images of fires, floods, and earthquakes in 2018? Videos, photos, family heirlooms, and artifacts and other irreplaceable items should be stored in some digital format, or in the cloud. If the family includes artists, take photos of paintings or sculptures so at least you have an image of the item should it be destroyed.

Discuss wishes with loved ones. One of the biggest challenges after someone passes, is knowing what they wanted to be done with personal possessions. If you have every Beatles album, unopened, what do you want to happen to your collection? Make inventories and then tell your family what you’d like to have happen with your possessions. You can create a “Legacy Letter” and put it down on paper. It’s not legally binding, but it will give your family some direction.

Prepare for incapacity. This is not everyone’s favorite task, but necessary. If you were conscious but not able to speak, what information would your family need? Work with your estate planning attorney to create the necessary legal documents, including medical directives, and tell your family members where they are located. Some families keep certain documents (like a Do Not Resuscitate or lists of medications) on the refrigerator, so that Emergency Responders can gain access to important medical information quickly in an emergency.

Yes, it’s a good-sized list of to-dos’, and you won’t get it all done in January. However, start in January 2019, so you and your loved ones enjoy the protection you need.

Reference: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

Add This to Your New Year’s Resolutions

The conversation with loved ones about growing older and the chances that we or our spouses are going to need help with the activities of daily living, is something that needs to be talked about before being faced with that situation. It’s difficult at best, says The Des Moines Register in the article “In 2019, resolve to have a difficult conversation,” but very necessary.

The person who is contemplating needing help, may want to start the conversation but the person who may be called on to help may find it too difficult to consider. Who wants to think about their parents getting frail and needing help going to the bathroom? No one.

The person who is starting to feel the impact of aging, may already be aware of some limitations. However, talking with their children or potential caregivers, may change the conversation from “someday” to “soon.” The loss of independence is one of the big milestones, just as gaining independence is a milestone earlier in life. That’s a hard thing to accept for both sides.

Those who have lived through this process of needing to become caregivers, say that it would have been easier, if they would have known what their loved ones wanted. So, would have been knowing what kind of help their loved ones could afford. It’s better to have time to research available resources in advance, rather than operating in crisis mode.

This is what your conversations need to address:

• Medications, physical health, emotional well-being and health care providers
• Their wishes, if their health declines slowly or rapidly. Do they want to stay at home? Who would they want to help with daily care?
• Finances: Can they afford to pay for care at home? Has any Medicaid planning been done? What government programs are they eligible for? Do they have a CPA or financial advisor? 
• Estate plan: Where is their Last Will and Testament? Is there a Power of Attorney, Living Will or Medical Directive in place? Who is their estate planning attorney? 
• Documents, including birth certificates, Social Security, insurance cards, safe deposit box keys, computer passwords, etc.

We prefer to think we’ll live a long healthy life and then die peacefully in our sleep, with no advance notice. However, that is not what happens to most Americans. Seven out of 10 people over age 65 will need help from others at some point, and most will need it for at least three years. Therefore, make having this conversation part of your New Year’s resolutions. When the time comes, you and your caregivers will be glad that you did.

Reference: The Des Moines Register (Dec. 19, 2018) “In 2019, resolve to have a difficult conversation”

Advanced Directive for Incapacitating Dementia

Many people who suffer from dementia appear to be suffering greatly at the end of their lives, because the dementia has progressed to the point where they have become completely incapacitated. Consequently, they can no longer perform the basic tasks of “daily living” necessary to survive and cannot express their wishes regarding how they would like to be treated. 

A dementia victim can live for a long time, if fed and given water. With the ready availability of advanced medical directives, it might seem easy to get one, whereby you refuse food and/or water if you are incapacitated by dementia. However, you cannot provide that advanced directive, unless you happen to live in New York, because it recently became the first state to allow this option as NPR reports in "'Aggressive' Advance Directive Permits Halting Food and Water In Sever Dementia."

People in New York will now have two options. They can direct that they continue to be given food and water, if it appears that they accept and enjoy it. They can also direct that they not be given food and water at all. It is hoped that the new directive will allow people suffering from advanced dementia to pass away more quickly, if that is what they choose in advance.

If this law works well in New York, it could become available in other states. It is still a good idea to get advanced medical directives, even if this particular option is not available in your state of residence.

Reference: NPR (March 29, 2018) "'Aggressive' Advance Directive Permits Halting Food and Water In Sever Dementia."

When To Shut Down The Pacemaker

Do you or a loved one live with a pacemaker or implanted defibrillator? These devices keep the clock ticking, so to speak. But when you are making end-of-life plans, when is the right time to turn the pacemaker off? This scenario is all too common and is presenting challenges in geriatric medicine and palliative care. Recently, The New Old Age Blog took a look at this perplexing issue in an article titled “A Decision Deferred: Turning Off the Pacemaker.” Compounding the problem is the fact that standard medical directives are designed with feeding tubes and breathing support in mind. Rarely do such legal instruments address the question of a pacemaker, implanted defibrillator or other surgically implanted electronic heart monitor. These devices may extend life, and maybe not for the better, but without the directive who is empowered to direct when or even whether they should be turned off? Simply put: no one. So how many patients with these devices have built their wishes (whether on or off) into their plans and medical directives? In one survey of 150 elderly and dying Mayo clinic patients, more than half had a medical directive (and only that -- a bad statistic in itself). However, only one medical directive addressed the issue of the patient’s defibrillator. Reference: The New York Times – The New Old Age Blog (January 29, 2014) “A Decision Deferred: Turning Off the Pacemaker”

Understanding The "Do Not Hospitalize" Directive

For elderly loved ones in nursing homes, there is a very powerful tool found in a little known directive known as the “do not hospitalize” directive. Unfortunately, it also happens to be underused and misunderstood, as pointed out in recent article in The New Old Age Blog titled simply “A Misunderstood Directive.” Advanced directives, as you may well know, are your medical choices reduced to black and white. They are intended to speak for you when you cannot. “Do not hospitalize” does not mean you do not want to receive care. In fact, you can even spell out the circumstances when you really want to go the hospital! Going to the hospital, however, is not always the best (or only) alternative across a spectrum of treatment scenarios. Hospitalization itself can be an intensely disorienting process, especially for patients with advanced dementia. Little surprise, then, that more than half of all elderly patients with dementia who are transferred from the nursing home to a hospital and back will pass away within the following 18 months. Accordingly, hospitalization can be an unfortunate step in the care continuum. In fact, hospitalization is oftentimes unnecessary. For example, most nursing home patients are sent to the hospital for respiratory infections, which is both avoidable and treatable in a nursing home setting without much trouble. On the other hand, the “do not hospitalize” directive can still provide that a broken bone or the replacement of a medical device can still trigger a hospital visit if you so stipulate. While advanced directives do some important work, according to some the “do not hospitalize” directive can help assure more peaceful late-in-life care. Reference: The New York Times – The New Old Age Blog (November 20, 2013) “A Misunderstood Directive”

Your Adult Children Need Estate Plans Too

When a child turns 18, the transition to adulthood seems to be just beginning. And even if the new, young adult is not quite an adult in their parent’s eyes, legally the transition is done. That being said, when should your adult children have their own estate plan?

MarketWatch recently addressed this issue in an article titled “Why your kids need their own estate plan.”

Few 18-year-olds have their own investments, retirement and insurance, let alone the complication of spouse and children. For many, however, it is just a matter of time. Why, then, should an 18-year-old newly-minted adult need a plan for their estate?

Once this birthday milestone is crossed, these “children” turned “legal adults” have new legal rights and responsibilities. In fact, the basics of estate planning are as important for them as for their parents.

Consider a very common example of why young adults need a basic estate plan: healthcare. At age 17, if they have an accident, then you (their parents and legal guardians) can step in to make their medical decisions, pay their bills, and even demand grade cards from their school. At age 18, however, all of that changes.

Should your adult child be incapacitated in a serious accident, then you are no more than a perfect stranger when it comes to your “legal” ability to take care of them and their business. You have hit a legal wall of expensive red tape. Fortunately, this wall is avoidable by proper planning.

Bottom line: whether you are a newly-minted young adult, middle-aged, or elderly, proper estate planning is a matter of personal responsibility. Basic estate planning tools include a health care proxy and a financial durable power of attorney.

Reference: MarketWatch (August 6, 2013) “Why your kids need their own estate plan”

Mind Your Words with End-of-Life Health Care Planning

What’s in a word? When it comes to making specific plans for your end-of-life health care decisions, a word can make all the difference. And when it comes to your health care directives, the words you choose can be a matter of life and death.

A recent post over at The New Old Age Blog in “DNR by Another Name” illustrates the importance of words and their legal import. It is worth reading the original article (and perhaps even the study it discusses).

Consider this: how a doctor presents a medical choice can lead a caregiver or patient in one direction or the other. For example, as taken from the title of the article, DNR, or “Do Not Resuscitate” is a medical term of art. However, it often means the same as “please allow for a natural death” depending upon the medical situation, the decisions of the patient, and even (or often exclusively) the very word choices and/or mood of the doctor themselves.

As one planning your own late-in-life decisions, language is a topic worthy of your careful consideration. Additionally, if you are caring for an elderly loved one, then be sure both of you understand your loved one’s advance health care wishes and take steps to clearly articulate them in proper medical directives.

Do not assume anything when it comes to the ultimate health care decisions. Make sure the patient, their appointed health care agent and the physician are all speaking the same language.

Communication and documentation are essential.

Reference: The New Old Age Blog – The New York Times (May 22, 2013) “DNR by Another Name