Posts Tagged ‘advanced directive’

Advanced Directive, Living Will or DEATH PANEL?

Sunday, January 31st, 2010

There has been a lot of fear mongering over the last year about end of life issues. To hear some politicos tell it there is a proposed change that would go something like:

-Granny, you have had a good life, but we ran a cost/benefit analysis and you are no long cost productive so the doctor is here to talk about transitioning you out….

To set the record straight, I know of no health care reform proposals that will kill your grandmother. All joking aside, I welcome the renewed focus that the legal issues surrounding end of life and critical care issues are receiving. Decisions as important as what care you receive at the end of your life should not be made in a place of anxiety or fear. The time to prepare is now before the need arises.

Most states, including Texas have an advance directive law. This Texas law was passed in 1999 with broad bipartisan support. I usually include living wills, also called advanced directives, in all of my estate planning packages. The advanced directive is an important part of any estate plan. When used in conjunction with other documents the advanced directive provides control over end of life issues.
In the standard advanced directive you decide what care you want if you are incapacitated and unable to speak for yourself. Do you want to be kept alive with respirators even if the doctor thinks there is no hope of recovery or do you want to be allowed to die as gently as possible? You decide and record your wishes now, before you need it. Most of us have never had this discussion with friends and family. It is hard to imaging slipping a discussion like this into casual conversation over Sunday lunch or a night out with friends.
“Mom, can you pass the hot sauce. Oh and by the way…if, in the judgment of my physician, I am suffering with a terminal condition from which I am expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care I want you to a) make sure that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; or b) make sure that I be kept alive in this terminal condition using available life-sustaining treatment. ”
We just don’t like to talk about these things. Unfortunately, if the need were to arise suddenly, as it often does, there would likely be conflicting ideas about what you wanted. I spoke to a young man at the Urban Harvest Farmers Market yesterday, who told me that he was sure his family would ignore his stated wishes if he were in a terminal condition. (This is of course what family does: They generally know better, or think they do, than we do.) By creating this document now, and having this conversation with friends and family now, you can ensure that you will receive the care you want.
Once you have executed this document, you will want to give copies to your healthcare providers and ensure that friends and family are aware of its contents. In the midst of a difficult time, this simple act can provide some peace and control for you and your family. Rosy and Lulu at the Farmer’s Market

TOP 5 mistakes in Estate Planning and Probate

Monday, August 17th, 2009

These are my top five I have seen in doing probate and estate planning.
1. I don’t have enough money for it to matter/Can’t I avoid probate?
There are provisions where you can get sometimes get by without opening an administration but why risk it? If you have debts an administration will be needed. If there is real estate there will need to be an administration. Texas probate is not as bad as you have been told. As much as I enjoyed Bleak House by Dickens where the entire estate was consumed by legal costs, Probate in Texas is much easier. With a properly executed will the duties of the executor are generally simple and not costly.
2. I can do it all myself with stuff off the internet or a form book. You may be able to. However, there are pitfalls in the probate code that flumox even experienced attorneys. Every estate has a different set of needs. An attorney familiar with the process can more effectively draft a plan to accomplish your goals.
3. Failure to account for the entire estate. It’s important to account for everything and understand where it will go under your will. I often draw flow charts to help clients visualize where everything will go. Often, clients will forget collections and personal items that they want to pass on to specific heirs. Do you have jewelry, collections or family heirlooms that you want to pass on? Are there mineral rights or royalties you have forgotten? You should talk to your attorney about these items and plan who will received these assets.
4. Failure to plan for incapacity. This is not a fun area to discuss, but there is a real chance that you or someone in your family may face long term incapacity. There is a court proceeding called guardianship, covered in a previous post, which appoints someone to make decisions for you. A court appointed guardian can handle financial matters, make health decisions and generally take care of the daily decisions that an incapacitated person needs. A good estate plan, however, will include documents appointing persons to handle these duties without the need for court intervention. You can decide who will care for you in the event of incapacity. More important in some families, you can decide who you do not want to make these decisions for you.
5. Failure to have an advanced directive or Living wills. The nation saw what a worst case advanced directive or living will scenario could be like in 2005 with the Terry Shiavo case. End of life decisions that should be personal and private, were debated by the entire nation. In Texas, one can complete a simple form that makes your end of life wishes clear. Had Terry Shiavo had this simple form the controversy surrounding her case would have been avoided. Because of the attention that end of life issues are getting as part of the health care reform agenda, I’ll be covering the advanced directive in greater detail in a later post.

So those are my top 5. I recommend talking about your plan with your attorney and your family prior to needing it. No one likes to think about these matters but planning ahead makes these transitions easier for all involved.