There are many reasons that patients and surrogates request life-sustaining medical treatment that providers deem inappropriate. They may be hoping for a miracle or compelled by religious rules. They may be mistrustful that the diagnosis is really that dire. But sometimes it is for the money. Over at the Estate Planning Blog, NJ attorney Henna Shaw recommends that people demand any and every medical intervention to keep them alive until 2010, when the tax laws change.
Ms. Shaw observes that "under the current estate tax structure, the federal estate tax exemption amount is $2 million in 2008, $3.5 million in 2009, and there is no federal estate tax in 2010." Therefore, she suggests "counseling clients to include . . . language in their current health care directives instructing that they be kept alive by any means necessary until January 1, 2010 (or maybe a few days later, just to be safe). This would effectively permit a client to achieve maximum estate tax savings, assuming the client might otherwise pass away before 2010."
Ms. Shaw gives this example: "Assume we have a single client with a taxable estate of approximately $13.5 million. If that client were to get into a fatal car accident on December 1, 2009, her estate would be subject to an estate tax of approximately $4.5 million. If the client could be kept alive until January 1, 2010, however, there would be no estate tax, and her beneficiaries would inherit the entire $13.5 million."
I am not sure what the IRS would make of this. But this could potentially create a whole bunch of futility disputes. Agents and surrogates may be particularly motivated to honor the patient's wishes since they will be the beneficiaries of any tax breaks. But health care providers may be particularly unwilling to maintain a patient's low-quality, zero-quality, or negative-quality corporeal existence merely to avoid taxes.
