Estate Planning

Advance Healthcare Directives the Living Will

 

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Advanced healthcare directives sometimes called “Living Wills” are legal documents which instruct health care providers of the level of care you desire if you are unable to speak for yourself.  Generally three conditions are anticipated 1) terminal condition, 2) persistently unconscious and 3) end-stage condition. If the patient is unable to communicate the Living Will provides health care providers with instructions.  Oklahoma’s statutory form suggests three levels of treatment to chose from:

  • Three traffic lights icon (done in 3d, isolated)Do everything possible to extend life including artificially administering nutrition and hydration if I unable to take these by mouth.
  • Three traffic lights icon (done in 3d, isolated)Do not provide any life extending treatments but do artificially provide nutrition and hydration if I unable to take these by mouth.

 

  • Three traffic lightsDo not provide any life extending treatments and do not artificially provide nutrition of hydration is I am to by take these by mouth.

 

Patients are no limited to these options and can provide detailed instructions such as time limits.  clock-439592_1280-tiny

Time Limit on Decision:  What if I live too long based on my decision?

Many people choose the “Do Everything” or “Hydration & nutrition only” options.  The reasoning is rational, they don’t just want to die without some efforts being made.  But what what if these measures only keep you alive without any chance of recovery?  It may be smart to include provisions to limit the duration of such treatment.  It might be good to include a statement that such measures should be withdrawn after _____ days.

Healthcare Proxy

It is important that your doctors, hospitals and close family members have a copy this record.  Also it is good to have these records available online at a moment’s notice.   An In Case of Emergency Card is a service Winblad Law offers See my DocuBank Page for more information.

Health Care Proxy

You may also chose a Health Care Proxy to make medical treatment decisions for you in the event that you are unable to make such decisions.  Your proxy can make decisions to the extent that they do not conflict with your Living Will.  Communication with persons selected as a health care proxy is important.

Organs and Tissue Donation

Oklahoma’s form provides an area that allows for the donation of selected organs,  tissue or the entire body.  These may be donated for another recipient, research or teaching.

Medical Power of Attorney

A Medical Power of Attorney is similar to the Living Will in that it grants powers to a trusted individual.  However, the Living Will does not address conditions that are not considered to be end of life.  A common example is granting authority to make health and living decisions in case of dementia.   The Medical Power of Attorney permits the person selected to become an attorney-in-fact to make medical decisions.  The power can be granted immediately or it can “spring” into existence if two doctors determine that you are incapacitated.  You may, but are not required to, grant this person the power to issue a do-not-resuscitate order or DNR.

Do-not-resuscitate

A “Living Will” is not the same as a Do-Not Resuscitate form.  This form isn’t for everyone. It is intended for use by a person who is near death. An advance directive doesn’t go into effect until two physicians certify your condition as terminal. But the DNR consent form goes into effect immediately. Therefore, it should be signed only by someone who is terminal in his or her own mind and has made an informed decision that he or she does not want to be resuscitated in any circumstance.

 

Federal Patient Self-Determination Act requires that all Medicare-participating healthcare facilities inquire about and provide information to patients on Advance Directives; it also requires these facilities to provide community education on Advance Directives. See 42 C.F.R. § 489.102. All healthcare facilities are required to:
• Provide information about health care decision-making rights.
• Ask all patients if they have an advance directive.
• Educate their staff and community about advance directives.
• Not discriminate against patients based on an advance directive status.

 

More Facts.

The U.S. Agency for Healthcare Research and Quality (www.ahrq.gov), in a 2003 article, “Advance Care Planning: Preferences for Care at the End of Life,” found the following:
• Less than 50 percent of the severely or terminally ill patients studied had an advance directive in their medical record.
• Only 12 percent of patients with an advance directive had received input from their physician in its development.
• Between 65 and 76 percent of physicians whose patients had an advance directive were not aware that it existed.

More Americans Discussing – and Planning – End-of-Life Treatment. The Pew Research Center, January 2006. Article
• 42% of Americans have had a friend or relative suffer from a terminal illness or coma in the last five years and for a majority of these people and 23% of the general public, the issue of withholding life sustaining treatment came up.
• An overwhelming majority of the public supports laws that give patients the right to decide whether they want to be kept alive through medical treatment.
• By more than eight-to-one (84%-10%), the public approves of laws that let terminally ill patients make decisions about whether to be kept alive through medical treatment.
• One of the most striking changes between 1990 and 2005 is the growth in the number of people who say they have a living will – up 17 points, from 12% in 1990 to 29% now.

 

peach farmersUnderstanding everyone’s vision is important for the development of a succession plan.  In order for any enterprise to succeed all parties must be pulling in the same direction.  Having an agenda for a succession plan is vital.  However, clear and honest communication can identify problems as well as opportunities.  Family members are often surprised at other family members’ visions or expectations.

Prior to a meeting the participants should be encouraged to express their goals and plans.

Disclosure of these desires should help shape the succession discussions.  The willingness to accept input from stakeholders will help set a proper tone for open dialogue.  It may be desirable to share the answers with family members before the meeting. Common questions may be:

  • How do you see your current role in the operation?
  • What roles would you like to have in the future?
  • How do you see your involvement changing or evolving?
  • Describe any milestones or events that will cause your involvement to change:
  • Describe the obstacles or challenges to the changing operation.
  • What resources can you bring to the operation? This may include financial, marketing, labor, innovations, knowledge, etc.

A form is available Here.

 

 

Joint Tenancy is one of many ways two or more people can hold title to property. Most married couples hold title to their homes as Joint Tenants. It is one of the simplest ways to hold property. Here is how it works most of the time:

John and Mary are a married couple and purchase a home together. The deed says that they are “Joint Tenants.” John dies. Mary files an “Affidavit of Surviving Joint Tenant.” She is now the sole owner of the home. The property is not subject to probate or claims of John’s estate. When Mary dies, the property is part of her estate.

Common Mistake: Mary thought that it worked pretty well when her husband died and thinks that this would be a great way to pass on property to her children. However, there are dangers in doing so.

Ownership: Each person who owns an interest is a “Joint Tenant. Each “Joint Tenant” has the right to occupy the whole of the property but not to the exclusion of the other Joint Tenant. In other words, every “Joint Tenant” can use the entire property but cannot excluded the other Joint Tenants from the property.

Some people attempt to use Joint Tenancy as an estate planning tool to pass property to their children. This can have disastrous consequences because the deed will give children an immediate property interest and rights. There are several issue that can arise when dealing with property held in Joint Tenancy. Common issues include:

  • Tax liens of co-tenants;
  • Bankruptcies of co-tenants;
  • Divorce actions of co-tenants;
  • Judgment liens of co-tenants;
  • Partition action by greedy co-tenants; and
  • Occupancy rights of co-tenants.

 

Examples:  Mary owns property and wants her children Doug and Sue to inherit it. She also wants to avoid the expense of probate. She deeds the property to herself and her children as Joint Tenants expecting them to “inherit” the property when she dies. Then one of the following occur:

  • Sue dies before Mary. Mary would have wanted the property to pass to Sue’s children. This will not occur unless Doug executes a deed with Mary adding Sue’s children as Joint Tenants. Doug is reluctant to execute the deed because in the event that he dies next Mary and Sue’s children would have to execute a new deed which add Doug’s children as Joint Tenants.
  • Doug is sued (car accident, debts etc.), filed bankruptcy or gets divorced. If the property is Mary’s home, it will be protected as a homestead that will prevent execution. If the property is not homestead, the creditors or bankrupt trustee will likely seek to attach the property. In any event, there will title problems that may prevent the property from being sold or mortgaged. Doug will not inherit the property an intended.
  • Sue becomes estranged from the family. She could bring a partition action to have the property sold and proceeds divided. She could also sell the property to a third-party who can take the same action.

Joint Tenancy is usually the worst choice for an estate plan.

Better Solutions:

Trusts: A better way is to hold the property in a revocable trust. The trust can provide for the intended distribution if a child dies before you. A trust can protect an inheritance from almost all creditors. The trust can be amended as circumstances change. In short, it provides the owner with control and prevents unintended outcomes described above.

Wills:  While Wills do not avoid probate they can provide for contingent beneficiaries or for heirs those who predecease you.  They are changeable and do not give those named therein a current ownership interest in the property.

Trusts are relatively inexpensive to establish and are a bargain when compared to the expense, time and frustration of dealing with probate court. Trusts require no reports or tax returns during its creator’s lifetime.

Transfer on Death Deeds: Oklahoma adopted a Transfer on Death Deed statute.  There are pros and cons to this approach.  For example the beneficiary is required to file an “acceptance” within 9 months.  Read more.

Rick Winblad,

102 E. Thatcher St. Edmond, Oklahoma 73034
405-340-6554

 

 

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