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Health Care Directives-Part 2
In my last post I discussed three different types of health care directives and promised you two more this week. Here they are:
Physicians Orders for Life Sustaining Treatment (POLST) is a document that gives seriously ill patients more control over their end of life care, including medical treatment, extraordinary measures and CPR, A POLST is printed on bright pink paper and unlike an AHCD and a Living Will, a POLST is signed by both the patient and their doctor.
A DNR order is a document which, when completed correctly, allows a patient with a life threatening illness to forgo specific resuscitative measures that may keep them alive. These measures include: Chest compressions, assisted ventilation, intubation, defibrillation and cardiotonic drugs (drugs that stimulate the heart). A DNR order does not affect the provision of other emergency medical care.
Health Care Directives-What’s the Difference?
An Advance Health Care Directive (AHCD) is always part of the estate plans I create for clients, regardless of the individual’s age or health status. An AHCD lets you name another person (a health care agent) to make health care decisions for you if you are unable to make them for yourself. It also allows you to give specific instructions regarding your health care and end of life decisions, specify organ donation wishes and provide burial instructions.
A Living Will (not to be confused with a regular will or a living trust, which serve completely different purposes) is a type of health care directive. It is a legal document that allows you to indicate which treatments you do or do not want in the event that you are suffering from a terminal illness or are in a permanent vegetative state. This type of health care directive does not include naming an agent to make health care decisions for you.
Five Wishes is a health care directive that addresses your personal, emotional and spiritual needs as well as your medical wishes. It includes the following sections:
1. The person I want to make care decisions when I can’t
Next week I’ll discuss Physicians Orders for Life Sustaining Treatments (POLST) and Do Not Resuscitate Orders (DNR).
If you are a parent you are probably willing to admit that you are not always perfect. This is a good thing to keep in mind when you are contemplating who would take care of your minor children if something were to happen to and your spouse. No parent wants to imagine this scenario, but taking some time to consider who would make the best guardian for your minor child(ren) will likely give you some peace of mind; and although you won’t find a perfect replacement for you, you can likely find the best fit for your child.
When choosing a guardian here are some things to consider:
1. Is this person or couple’s parenting style similar to yours?
You may find it helpful to make a list of what is most important to you and choose according to your top three or four priorities. You may decide, for instance, that having someone who shares your parenting philosophy is more important than where they live. Once you have decided on the person or couple who is the best match, it is important to talk to them to make sure they are comfortable being named as guardian(s).
It can also be helpful to remember that the chances that the guardian you have chosen will have to act in that role are very small. It is a big decision, but keeping this perspective can make it less daunting.
How to Introduce the Topic of Elder Care
Tell a parent or friend you care, you are here to help, and want to be a part of an ongoing dialogue about their changing needs. Acknowledge past help they’ve given you and express a desire to return the favor. Find a way to frame the issue that is positive, focused on strengths rather than deficits, prevention rather than accusations of decline.
Ask for professional help from doctors, lawyers or financial professionals who work closely with your parent. Reach out to your parent’s network. Identify people they trust who are willing to meet with your family to help introduce topics appropriate to the skills of that particular professional. A trust attorney, for example, can meet to explain how the estate plan works, and who will provide what type of support if the need arose. Some professionals talk with clients about issue spotting, transitions in needs, connecting with community resources and many other important points on a regular basis. Others are uncomfortable with these topics, so scout out resources with a brief phone call ahead of time.
Early Interventions in Elder Support
Start small. We tend to be creatures of habit who guard our autonomy and household habits fiercely. Its much easier to slowly introduce supports rather than waiting until a huge need has developed, which can feel like a hostile take over. For obvious reasons, waiting for the big intervention will often meet stubborn resistance.
Having 1-3 meals delivered weekly by a meal preparation service for the elderly can be an easy start. Hiring a house cleaner for the “heavier” cleaning tasks, and slowly increasing the tasks assigned as needs change is another nice start. Elders who are themselves caregivers for a sick spouse can benefit greatly from encouragement to engage relief or respite care to run errands, see a friend, or get a hair cut. Once resources are identified and familiar, ramping up services as needed becomes much easier.
When to Step Up Care for a Parent
There are many signs that a parent needs help. Financial indicators include overdue utility bills or disruption in utility services. Bounced checks or undeposited income checks laying around the house also show a lack of financial engagement that may indicate financial danger. Engagement in scams or lack of awareness around charitable giving can both show a decline in capacity and may mean your parent has already becomes a target of financial elder abuse.
Personal care indicators are most significantly marked by falls or other critical health events, but there are often earlier, more subtle signs that help with personal care i needed. A lack of unexpired, edible food in the refrigerator and cabinets will prevent proper nutrition, which leads to physical decline. While elders often eat less as they age, excuses such as I’m not hungry, I really only want canned food, etc. often indicate that food preparation is an issue. Hygiene changes may indicate unaddressed incontinence or difficulty bathing, laundering clothes and toileting.
Estate Planning: A Road Map
Imagine that you are about to take a road trip to somewhere you have never been before. You may have a general idea of where you going but you don’t have a map. Now imagine that you have to drive the car while you are grieving, overwhelmed or confused. You may have family members along for the ride who are also dealing with strong emotions and they all want to go in different directions. It sounds like a recipe for disaster.
Now think about how much easier that road trip would be if you had been given a map. Creating an estate plan is like leaving a road map for your loved ones. They will still have to make a difficult journey, but think of how much smoother it will be if they have directions.
Newly Married: The Pros and Cons of Maintaining Separate Property
The decision to keep assets separate may be guided by a number of personal values. Common reasons to maintain separate property include a desire to protect assets from possible loss in divorce, maintain financial independence from a spouse, control the flow of inheritance, or to have general autonomy in relation to assets that belonged to one spouse prior to marriage or were inherited or gifted family assets.
If those considerations are not important to you, the single biggest advantage of “commingling” or turning assets into community property is the double step up in basis for capital gains purposes. Assets are commingled by putting both names on the title to the asset, and/or merging bank or brokerage accounts into joint community property accounts.
These community property assets will receive a full step up in basis at the death of the first spouse. This allows the surviving spouse to liquidate real estate or securities following the death of the spouse without paying capital gains.
Property that is kept separate, but is inherited by the surviving spouse through a trust or pay on death designation will also receive a step up in basis. However, those assets held as the separate property of the surviving spouse maintain their cost basis without any adjustment due to the death of the deceased spouse. Gains tax will be owed if an appreciated asset is sold by the surviving spouse from his or her separate property.
DIY Estate Planning
I’m all for a good do it yourself project. I recently refinished a coffee table and attempted to make a slipcover for the chair my cat destroyed. But I wouldn’t recommend doing your estate plan yourself.
I might be a tad biased considering I am an estate planning attorney, but the chances of making a mistake are high and the consequences of those mistakes could be huge. Most DIY estate planning resources are one-size-fits-all, and you may recall me saying, estate plans are not.
When it comes to estate planning, details matter. If you make a drafting error or if your will is not witnessed properly, your documents could be invalid. If you have drafted a trust but the trust has not been funded, it will not work the way it was designed to work.
Add to that, common complications associated with a second marriage or a child with special needs, and the possibilities for error increase. The decisions you make in an estate plan can have unforeseen and unintended consequences. An experienced estate planning attorney can help avoid those pitfalls and achieve your goals in thoughtful manner.
Trustee’s Duty to Inform
The California Probate Code imposes on a trustee the duty to “keep the beneficiaries of the trust reasonably informed of the trust and its administration.” While the Probate Code specifically requires a trustee to provide certain types of information to the beneficiaries at certain times, it does not include any definition of the phrase “reasonably informed of the trust and its administration.”
In many cases, the more information a trustee provides the better. A trustee is likely to encounter problems with beneficiaries who feel like they are being kept in the dark. The best way to avoid that is to be as open and forthcoming with information as possible. Even where the Probate Code does not require it, the beneficiaries will likely appreciate being informed of any significant actions the trustee plans to take, such as selling or distributing any trust property of significant monetary or sentimental value. On the other hand, it may be more efficient for a trustee to inform the beneficiaries of more routine actions through periodic updates, rather than individual notifications of each and every action taken. The important thing for a trustee to remember is that the beneficiaries have a right to request “information”; therefore, answering questions from beneficiaries is an important trustee responsibility under current California law.