Posted on 11/21/2002 8:14:18 AM PST by scripter
You may not need a trust, an elaborate estate plan or even a will. But unless you want a stranger making important decisions for your and your family, there are some things you do need.
By Liz Pulliam Weston
Most Americans don’t have wills, but that’s not the crisis many in the estate-planning industry would have you believe. With a few exceptions -- which we’ll talk about below -- most people’s quality of life won’t be much improved by a will.
That’s because your state already has a basic plan for distributing your stuff when you die. You’re dead, so what do you care? If who got your stereo and your comic book collection wasn’t important enough for you to bother with a will while you were alive, it certainly won’t matter to you after you’re gone.
What your state doesn’t have, though, is an efficient way to take care of you if you’re still breathing but unable to make your own decisions because of incapacitating illness or injury.
So if you get in a car accident and die, your estate will be distributed more or less efficiently. Get in a car accident and end up in a coma, and you could be in a world of hurt.
Your critical decisions made by a stranger?
Who would be authorized to pay your bills or wrangle with insurance companies about your care? Who would decide whether to sue that driver who hit you -- or shut off the respirator that’s keeping you going?
The state will eventually find someone to fill these roles, after a potentially costly and time-consuming court hearing. But it might not be the person you would want. So at a time when you’re most vulnerable, life-and-death decisions could be made for you by a stranger -- or an estranged, distant or greedy relative.
That’s why you need the following documents:
Fortunately, you can get these documents -- plus a basic will -- drawn up by an attorney for $300 to $500 in most areas. You can also buy software, such as Quicken Family Lawyer, if you want to do the work yourself.
The point is, just do it. If you need more convincing, consider the case of Robert Wendland, who was severely injured in a 1993 car crash at age 42 -- sparking a gut-wrenching court battle between his wife and his mother that ended up before the California Supreme Court.
Fight over removing the feeding tubes
Wendland was in a coma for 16 months before recovering what doctors called “minimal consciousness.” He could catch a ball and play with infant toys, but couldn’t speak, eat, walk, recognize his family or comprehend a Saturday morning cartoon. Doctors said his condition was not terminal but would never improve.
Wendland’s wife Rose, whom a court had appointed as his conservator, decided he wouldn’t have wanted to live as he was and asked doctors to remove his feeding and hydration tubes. Wendland’s mother Florence went to court to keep him alive. Eventually, California’s top court sided with the mother -- a few weeks after Robert died of pneumonia after surviving on life support for eight years.
A right to direct your own medical care
Although courts have allowed family members to disconnect life support from unconscious, terminally ill patients who didn’t express their wishes clearly, the California judges were reluctant to set such a precedent for “minimally conscious” patients.
Had Wendland created durable powers of attorney or any other paperwork detailing how and whether he wanted life support to be used, the court battle may have been prevented, legal experts said. That’s because the U.S. Supreme Court has ruled that every individual has a right to direct his or her own medical care, even if loved ones disagree with those directions.
Thinking about these issues is not fun, which is probably why most people avoid it. You have to ponder some of the grimmest circumstances imaginable. Do I want to be on a respirator if I’m conscious? If I’m unconscious? Do I want food and water withheld? How about pain medication?
Decisions about health care, money
You also have to figure out whom to name as your so-called “attorney in fact” or proxy to help implement these decisions for you. You don’t have to name the same person for both powers of attorney. In fact, many people find that the people they trust to make health-care decisions are different from the ones they want handling their finances.
That said, if you’re married or in a committed partnership, that person is a logical choice to fill both roles. But you’ll still need back-ups in case he or she is injured or killed in an accident with you. For the health-care directive, you’ll probably want people who are nearby or at least willing to travel to the hospital to be with you, perhaps for an extended time.
The person handling your finances may be able to do so remotely, although you may still prefer to name someone who lives relatively close for convenience sake. In addition to paying your bills and handling insurance claims, the person handling your finances may also need to sell your home or make other complicated moves that require more proximity.
Parents of minor children: this one's for you
You can change these documents at any time, as long as you’re still competent. You probably should review them about once a year to make sure you’re still comfortable with your decisions.
Now, back to the issue of wills. I was being a bit facetious above, since many people want more control over who gets their stuff than state law dictates. If you’re wealthy, estate-planning documents also can help you reduce potential taxes, which can give you peace of mind while you’re alive.
That said, there is one group of people who should absolutely, no question, have a will, and that’s parents of minor children. Even if you can’t agree on who gets the crystal, you need to agree on who would take care of your children in the event of your death. No matter how icky you feel about planning for your own demise, you owe it to your kids to spare them the potentially ugly and drawn-out custody battle that could ensue if you don’t make these decisions now.
So go make that appointment with an attorney, or buy the software, right now. A small investment of your time could spare you and your loved ones a lot of grief.
Almost always, when the wishes of a suddenly and critically ill person can be ascertained, they want to revoke thir "living will" and go for the gold.
People, especially young and healthy ones, routinely overestimate how unacceptable intrusive care would be, and routinely underestimate the probability that such care would lead to meaningful recovery.
It should tell you something that the main pushers of "living wills" today are the government, and HMOs.
They were invaluable in dealing with his affairs, making the proper decisions, and proving to the doctors that a 92 year old man would not want a feeding tube and ventilator as they were suggesting.
There was pressure put on my husband, as health care surrogate, to put his father on a feeding tube and ventilator, even though it was clearly stated in his living will that he did not wish one, and even though the doctor told us his condition was "terminal."
We did prevail and they honored his and our wishes to not artificially prolong his life.
But I have become very suspicious of the "medical" community and it's desire to keep people alive through unusual measures even though their wishes have been made known in a living will.
Enlighten me.
I cannot see how, if the document is clear and unambiguous, it’s not in every party’s (the patient, the family, the practitioners, the insurer) best interest to have documented directives.
The only interests that matter are the interests of the person who executes the document.
Those interests change over time.
The way we perceive medical care when we are healthy is very, very different than the way we perceive it when we are sick.
The doctors and hospitals like to have blanket permission to revive, extend life, try exotic treatments, and so forth -- if the patient has medical insurance. If not, and if they feel the family's financial resources are exhausted, they'd like authority to terminate life support for aything more severe than a hangnail.
The insurance companies, of course, see things differently. They love "DO NOT RESUSCITATE" orders, and living wills that direct the termination of life under a wide range of conditions. If a family member hold's the patient's durable power of attorney and the insurance company can get to him, he'll be subjected to pressure to terminate even against the terms of any living will the patient might have left.
When these titans clash, it's best to have one's affairs in impeccable order. It's also best to leave one's power of attorney in the hands of someone absolutely trustworthy with one's life -- but I'm not telling you anything you don't know.
All in all, living wills and the like are a chancy business.
Freedom, Wealth, and Peace,
Francis W. Porretto
Visit The Palace Of Reason: http://palaceofreason.com
If you will do a search on the FLP, it is an airtight way to keep anyone from seizing your property in a legal judgment. Odds are 1 in 3 you will be sued, if you are wealthy enough to own $50,000 in assets, and especially if you own a business. Small business owners are expected to be sued 5 times, on the average.
I have personally used this method, and when I was sued, the plaintiff dropped the case, because I had "no assets".
#5, do you happen to know the month and year of that Reader's Digest article?
I have never heard of the FLP, thank you. We'll probably get a living trust early next year after the adoption of our sons is final (Dec 11).
When these titans clash, it's best to have one's affairs in impeccable order. It's also best to leave one's power of attorney in the hands of someone absolutely trustworthy with one's life -- but I'm not telling you anything you don't know.
So, again, what's wrong with having documents drawn up, placing the affairs in order, beforehand? You seem to imply, Noble, that it's not a good idea for the patient.
It should tell you something that the main pushers of "living wills" today are the government, and HMOs.
One word of caution: The powers of attorney (or of personal representative) for financial affairs last ONLY while the principal is alive. The instant that person is dead, the power to use his money ceases. Between the moment of death and the time the estate is distributed with permission of the probate court, it is possible that nobody is authorized to spend the decedant's money even for things that are sort of obvious, such as the expenses of his final illness and for his funeral. Sometimes people have not been buried for a long time because, until their estate was distributed, nobody was able (or willing) to stretch themselves out financially by paying for the funeral out of their own money in expectation of reimbursement. It may be highly desirable to make specific arrangements to assure that at least certain of the survivors have access to some assets during that interim.
Sorry, it was SEVERAL years ago, at least 8 or 9. I'll try to find out.
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