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Do I Have To?

By: Larry E. Bray, Esquire

O.K., O.K., Already! So you’ve heard enough about vegetative states, plug pulling, brain stems, feeding tubes, living wills and healthcare surrogate designations. And Alright Already, you say! You already know that you should have a will or trust plus a durable power of attorney because you have a family.

As important as you know these four short documents are for basic family estate planning, have you gotten any of them? Probably not.

Well, stop beating yourself up. You’re not alone. The reason is not that you are lazy or irresponsible. It’s simply that the catastrophes these “dooms-day documents” are meant to address are just so remote and so difficult to think about; And you just can’t find the time to go to a lawyer’s office, tell your life story, think about your mortality and get it done. Besides, you think, it’s too expensive and your money is needed elsewhere right now. Anyway, you roil, what’s the worst that can happen? Right?

Well, the answer is, (1) a lot can happen, (2) it doesn’t take a lot of time, (3) it’s not expensive, (4) risks exist, like it or not, so you ought to think about it, and (5) you don’t even have to leave your house except to have a notary and two witnesses present when you sign. In fact, if you don’t care that you don’t actually meet the attorney who actually prepares your documents, the whole ball of wax can be done without ever going to a lawyer’s office. The information can be taken over the phone, payment can be mailed, documents can be mailed to you for review and, provided the documents don’t need revision, they can be executed anywhere there is notary public and two witnesses together in the same room. Some banks and brokerage houses will do this for you. Or, if you can’t find a spot, the lawyer who prepared the documents will be happy to supervise their execution in his/her office. If it all takes 20 minutes, that would be a lot.

What if I don’t –?

Well, that all depends.

As to the living will, you all know that the Terry Schiavo matter was heart-wrenching no matter what side of politics you were on. The execution of a living will and a healthcare surrogate designation keeps you in control of your own destiny even if you are incapable of expressing your wishes any longer. It allows you to chose, while you still can, how you are to be dealt with in the event that the only thing keeping you alive (in any sense of the word) is a machine. Your designated healthcare surrogate is selected by you to make decisions on your behalf if you can’t. That person should be someone very close to you and who can be trusted to carry out your wishes in accordance with your instructions thoughtfully set forth in advance in your living will. Thus, the title “advance directives.”

And don’t think for a minute that anyone you select can make a decision like this casually. In fact, if the document is properly prepared, there is a formal procedure set forth therein for the determination of your condition. In determining whether there exists a terminal condition, an-end stage condition, whether there is a permanent vegetative state, or whether there is a medical condition or limitation referred to in the advance directive, the attending or treating physician and at least one other consulting physician must separately examine you, the finding of such examination must be documented in your medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn. And even then, your trusted health care surrogate can still refuse if he/she thinks that it’s just not the right time. So, those TV dramas where the surgeons stand over a still warm body waiting to harvest organs, are just that, TV. There are procedures in place to prevent that from happening.

Both the living will and healthcare surrogate designation, if properly drafted, also address privacy issues that have now come into all of our lives via “HIPAA” (the Health and Income Portability and Accountability Act of 1996). Because of this legislation, even immediate family members can be prevented from seeing a loved one’s medical records, which may be needed for decision making purposes, unless your doctor and the hospital have your living will on file with the proper HIPAA authorizations contained therein. This has been a nightmare for at least two of my clients who came to me for help to remedy this very situation.

The misery that can result if you fail to put advance directives in place was vividly illustrated for months over the television and radio during the Terry Schiavo matter. Doubtless, no one would argue that their family doesn’t need or deserve to know a loved one’s wishes about this ugly topic and be able to prove those wishes? Surely, no family wants to speculate or debate what you might have wanted under a set of unthinkable circumstances. Everyone then involved should take comfort in knowing, and being able to prove, what your thoughts were on the subject? Of course, for years past, doctors have quietly made these decisions for us by “letting him/her go”. But that doesn’t happen too much any more because of the potential exposure our litigious society has spawned. So we all get hooked up to machines that keep our hearts ticking even though there may or may not be any brain activity and even though there is no possibility of recovery to any quality of life by anyone’s standards.

Now, what if you don’t have a will or trust? Well, again, that depends on your situation. If you are married with children and you predecease your spouse, although you would have liked all your assets to go to your spouse, absent that expression in a testamentary instrument like a will, trust, proper deed to real property, and so on, then your wishes will not be fulfilled. Absent a properly executed testamentary instrument, a testator’s assets will descend by the laws of intestacy. In other words, if you don’t say how you want it to go, then it (whatever “it” is) will go in accordance with how Florida Statute 732.108 says it should go. You would have lost all control over how your assets should be distributed and given the power to the Florida Legislature. The statute actually says that when a testator leaves a surviving spouse and lineal descendants, all of whom are also lineal descendants of the surviving spouse, the deceased’s estate (assets) shall be distributed as follows: the first $60,000 shall go to the surviving spouse and the balance of the assets shall be divided equally between the spouse on the one hand and the children on the other hand. Therefore, the spouse would only receive a portion of what you wanted him/her to get while the children (yes, even very young children) would inherit, outright, the rest. The statute makes no provision for a custodial account for the children nor does it set up a custodial trust. Therefore, if a child is too immature to inherit outright, yet is old enough to understand that he/she is technically entitled to some bucks that would go a long way toward a “HARLEY”, or maybe some cool rare “POKEMON CARDS”, this can reek havoc on the family. And I have seen the most loving of families grind themselves into bitter destruction over money and property. It is indeed unbelievable and heartbreaking to watch.

With regard to small children, if, God forbid, two spouses, with small children, go away on a trip together and leave little Josh (3) and Taylor (5) with grandma (78) and grandpa (81), and then, unbelievably, both perish in a simultaneous accident, what now happens to Josh and Taylor? Had this unthinkable event been planned for, a testamentary will or revocable living trust would have (a) designated a guardian for them and (b) set up a custodial trust and designated a trustee to hold the estate assets as well as any life insurance proceeds (otherwise payable outright). Here, at least advance planning allows your children to grab onto some sense of security by having a loving guardian take them in (someone who had already taken the time to think about it) and some financial security with the assets and insurance proceeds to be managed, invested and reinvested by a trustee responsible for the health, education and welfare of the children. Usually, the corpus of the trust is not to be touched unless it is deemed by the trustee as needed for designated purposes (ie. college or special needs) or at such a time that a child reaches a certain level of maturity, perhaps 22 or 25 or 30 years old. Again, planning is the key.

As to a durable power of attorney, this allows your spouse, a grown child, parent or other trusted person, the ability to act on your behalf respecting financial matters, even in the event that you are unable to act because of physical or mental incapacitation. The powers that you grant can be limited or so broad that the attorney in fact can do anything you can do except vote in a general election and contract for marriage. The reason that this instrument is called a “durable” power of attorney is that it continues in effect even after the grantor becomes incapacitated.

Again, the consequences of not having one in place depend on the situation. If you are married with all bank accounts and other assets being held jointly, and provided the incapacity is temporary, then perhaps there would be no consequences as the healthy spouse can take care of everything. On the other side of the coin, if a spouse, (God forbid a million times), becomes permanently incapacitated and is in need of round the clock care, but the family cannot afford such care, government assistance (perhaps Medicaid) might be needed. However, if the incapacitated spouse’s continuing income from social security disability and/or some other source(s) exceeds $1,675. per month, then a Qualified Income Trust (“QIT”) might need to be drawn and executed by the incapacitated spouse in order to shelter some of that income for Medicaid eligibility purposes (of course this is allowed by statute). But since the incapacitated spouse can’t sign anything any more, and since no attorney in fact had been designated to act in a durable power of attorney, there is now no way of getting that QIT drawn and Medicaid is now just wishful thinking. Likewise, for purposes of Medicaid eligibility or other governmental assistance, the incapacitated spouse seeking assistance can only have $2,000 in assets titled in his name. Immediate transfers between spouses would have been allowed here, but the incapacitated spouse can’t sign anything over and, again, there is no attorney in fact to do so on his/her behalf. I have several clients, albeit seniors, who find themselves in this situation and they walk around in circles saying to themselves, “if only”.

So, Enough Already with the scare tactics (you are thinking)! Stop making me feel bad, I’m not a bad person!

Well, you’re right. You’re not bad, or lazy or irresponsible or anything else negative. You’re just busy and you don’t like to think about this stuff. I don’t blame you.

Surely, this article is not meant to preach nor should it be construed as advice as to what your living will should say about unthinkable things. The intent here is simply to sensitize everyone to think about this stuff and to express their thoughts on the subject in advance of anyone ever having to think about it.

Hey, stuff happens. Rather than feeling bad, just think about how GOOD you’ll feel if you just take the little effort and time it takes to do the right thing. Like Walter Brimley says, “It’s the right thing to do.”

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