Varian Law LLC

Do Not Wait for a Health Crisis to Begin Estate Planning

What measures would you like carried out if health issues arise and you cannot speak for yourself?

A very important conversation to have with your loved ones is what you would like for your care should a health crisis arise. While it most likely will not be your favorite conversation, it is important that you don’t put the conversation off until the need for it is created by an immediate situation, according to the Cleveland Clinic in “How to Get Your Living Will and Healthcare Power of Attorney in Order,”

Have your estate planning attorney help you complete advance directives. Remember that each State has its own laws, so work with a local attorney who can create the correct documents. You will want a Health Care Power of Attorney to name an agent, who will make medical decisions when you cannot speak for yourself.  

You also need to have a living will. This will spell out the kind of care you want if you are terminally ill or permanently unconscious. The focus of this document is keeping you comfortable, versus using artificial means to keep you alive. This is also the document to use to express your wishes regarding organ donation.

Talk with your family and loved ones. Critical care doctors often report that when they ask patient’s family members what the patient’s wishes are, few families know. What if you woke up from a car accident, and discovered that you were breathing through a ventilator and could neither speak or move? These are uncomfortable conversations, but in their absence, patients and families are left in worse situations.

You should also talk with your doctors and healthcare providers about your wishes.  It is important for them to have a copy of your advance directives to keep in your medical records. They’ll be scanned and placed in your file. Let them know about your wishes, your values and about end-of-life care concerns.  Your goals may change, so you may need to have more than one conversation. You may want to speak with your family members first, then document your wishes with your estate planning attorney.

Reference: Cleveland Clinic (Oct. 11, 2018) “How to Get Your Living Will and Healthcare Power of Attorney in Order”

Review Your Medical Directives Often

Medical Directives and other estate planning documents need to be kept up to date as the years pass by, according to the Watertown Public Opinion in “Keep medical directives up to date.” If you do have a Medical Directive and haven’t looked at it in years, then it’s time for a review to make sure it still reflects your wishes.

If you don’t have a Medical Directive and an emergency strikes, family members and medical providers have to make decisions without any input from you.

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

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

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

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

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

An experienced estate planning attorney can advise you on creating an estate plan, or updating an estate plan, that fits your unique circumstances.

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

Preparing to Care for Your Parents Can Be Difficult

Life starts out with your parents taking care of you, but that scenario changes later in life and you often end up caring for your parents. Sometimes preparing for that situation is easy, but not always, according to Connecticut Magazine in “Senior Caregiving 101.”

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

Where should you start? Take it one step at a time.

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

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

Is there a lot of paperwork? Yes and no. By preparing in advance, you avoid digging through a scavenger hunt for insurance policies and bills and legal documents. Important legal documents include Wills, Powers of Attorney and Advance Directives.  By preparing ahead of time, you will already know where the legal documents are, and you will be free to focus on other important things, such as taking care of and spending time with your aging parents.

It would be a very good idea to meet with an estate planning (elder law) attorney to address your specific circumstances.

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

You Should Not Leave Your Health Care Decisions Up to Others

You may have your own ideas on what should happen if you are incapacitated.  However, your loved ones could have other ideas.

What happens if you do not have an Advance Directive or a Living Will? For example, if you are in an accident and decisions need to be made about your medical care, your family might not have a good idea what decisions you would make.  That can create problems for them as they try to decide on what care you should receive, according to the Sentinel Source in "Planning ahead for health decisions benefits everyone."

There is a better way. Make your wishes known in advance and ensure that they are legally enforceable. With a properly drafted Living Will you can set out what procedures doctors should and should not perform if you are incapacitated with no chance of survival.  An Advance Directive can be used to appoint someone to make medical decisions for you if you are unable to express your own wishes.

An experienced estate planning attorney can advise you on creating an estate plan, which may include the preparation of a Living Will and Advance Directive.

Reference: Sentinel Source (April 18, 2018) "Planning ahead for health decisions benefits everyone."

Advanced Medical Directives Should Not Be Hidden Away

The wishes you have expressed in a medical directive, do not do any good if no one knows about them.

The system of medical records used in the U.S. does not make it easy for doctors to know that you have a medical directive and that you have expressed your wishes ahead of time, according to The New York Times in "You've Detailed Your Last Wishes, but Doctors May Not See Them."

There is a potential way to mitigate the possibility that this problem will happen to you. Get your living will and your health care power of attorney ahead of time by going to an estate planning attorney. These documents are routinely created as part of the estate planning process.

Once you have created the documents, you should store them in a secure place.  However, do not stop there.  Make sure that someone you trust knows where to find the documents. That person should be able to get them when needed to the doctors providing care for you.

Reference: New York Times (March 27, 2018) "You've Detailed Your Last Wishes, but Doctors May Not See Them."

Planning for Incapacity is an Essential Part of Estate Planning

You cannot prevent being incapacitated; however, you can make plans just in case it should occur.

There are no age requirements for disabling accidents or illnesses, so it would be wise for everyone to plan for what would happen if they were to become incapacitated, according to TC Palm in "Be as prepared as you can by planning for incapacity."

To get started, schedule an appointment with an estate planning attorney. The attorney can prepare the necessary documents for incapacity.  Among other things, you may need a general durable power of attorney so someone else has the authority to handle your day-to-day finances, a health care power of attorney that will allow someone else to make your health care decisions, and a living will that will let you decide ahead of time what medical means can be taken to prolong your life.

An experienced estate planning attorney can advise you on creating an estate plan that fits your unique circumstances, which could include preparing for a future disability or incapacity.

Reference: TC Palm (Feb. 20, 2018) "Be as prepared as you can by planning for incapacity."

Be Prepared for a Possible Disability

It is important to plan in case you are one of the people who will suffer from Alzheimer's disease or some other impairment.

Alzheimer’s disease is something that everyone should consider as a possibility in their future, according to the Times Herald-Record in "Disability planning is vital in case of cognitive impairment."

Unfortunately, experts do not think a cure for this disease is likely in the near future.  They expect that the number of people who suffer from it in American will double by the year 2060.  Fortunately, planning for Alzheimer's disease is not very difficult.

An experienced estate planning attorney or elder law attorney can assist you in getting your legal paperwork in order.  Among other things, you will need a health care power of attorney so someone of your choosing can make your medical decisions for you.  You will also need a general durable power of attorney so someone of your choosing can handle your day to day financial affairs.  And you should also have a living will so that doctors will know what to do and not to do when you are terminally ill with no chance of recovery.

Reference: Times Herald-Record (Jan. 18, 2018) "Disability planning is vital in case of cognitive impairment."

Planning for Incapacity Should Be Part of Your Estate Plan

It is best to consider all possibilities when making plans to protect your family.

As part of your estate plan, you might consider that while you are at the attorney's office you should also get plans for what might happen if you become incapacitated, according to the Times Herald-Record discusses in "Make plans in case you are incapacitated."

The issue is that if you are incapacitated, someone else needs the legal authority to act on your behalf.  Someone will need to be able to pay your bills and to make medical decisions for you if you are incapable of doing so.

If you do not plan ahead, it can be an expensive and difficult process for someone else to get the legal authority to handle your affairs and make medical decisions for you.  Someone will have to hire an attorney and go to court to get a judge's permission to act as your guardian.

Fortunately, planning for what will happen if you become incapacitated is not difficult.  Generally speaking, you would most likely need a general durable power of attorney and a health care power of attorney.

An experienced estate planning attorney can advise you on creating an estate plan that fits your unique circumstances.

Reference: Times Herald-Record (Dec. 12, 2017) "Make plans in case you are incapacitated."

Health Care Workers Face Lawsuits for Saving Lives

Doctors and other health care workers are trained to save lives whenever possible, but that can get them in trouble when patients don’t agree with their decisions.

Millions of people now have advanced medical directives, which can cause conflicts and problems for health care workers, according to The New York Times in "The Patients Were Saved, That's Why the Families Are Suing."

The problems start when the patients' advanced directives are not followed correctly.

Health care workers, who are either unaware of the directives, or uncertain about them, have been known to resuscitate patients who do not wish to be.  Such actions have led some families to sue for saving the lives of their sick relatives, which is an unusual position for doctors to be in (the majority of suits normally come when doctors fail to save patients).

This leaves many doctors bewildered, since the Hippocratic Oath does not suggest that saving a patient's life is ever inappropriate. However, Americans deserve to have their advanced medical directives respected and followed. 

Reference: New York Times (April 10, 2017) "The Patients Were Saved, That's Why the Families Are Suing."

Get Yourself a Will but Don’t Stop There

An estate plan is more than a Will and can solve many problems for you and your family.

Some recent statistics point out the importance of Americans not only creating a Will, but learning about the options of an estate plan, according to the AARP in "Haven't Done A Will Yet?"

A new survey reveals that 58% of American adults do not have Wills. The survey also found that it was even worse for parents of minor children.  A total of 64% of them do not have Wills. They have more reasons than anyone else to have a Will.

But estate planning should not stop with just a Will.

A Will is only one of the documents you can get by going to an experienced estate planning attorney. For example, you might learn that a Trust is a better primary estate planning tool for you to use in your particular situation. Through an attorney, you can also get other important legal documents, including a health care power of attorney, a general durable power of attorney and a living will.

These and other legal documents will make sure that your financial affairs are managed properly if you ever become unable to handle your own affairs.

An estate planning attorney can help you to prepare your Will as well as informing you about the options of an estate plan.

Reference: AARP (Feb. 24, 2017) "Haven't Done A Will Yet?"