The judgment was in the  case of W v M and others and the patient M was diagnosed as being in a persistent vegetative state.

Her  family applied to the court for an order to have her artificial nutrition and hydration withdrawn.

But it was later found that she was in fact in a minimally conscious state and so the order was refused.

In his judgment, Mr Justice Baker made various observations as guidance for similar cases in the future.  Amongst these was the point that, given the sanctity of human life, a decision to withdraw nutrition and hydration must always be referred to the court and a call for non-means-tested legal aid to be made available to family members who have to make an application to the court in these circumstances.

This brought home to me the importance of making an advance decision, or a living will as it is sometimes known.

For many years there was some doubt as to whether a living will was enforceable, but the Mental Health Act 2005 endorsed advance decisions and set out requirements for a valid advance decision.

Anybody can, at any age, suffer an accident or illness that leaves them with minimal consciousness and no prospect of recovery. In those awful circumstances the family of the patient must agonise over whether the patient would want to be kept on life support and, if the answer is no, they must take the momentous step of applying to the court, with the anxiety and huge expense that legal proceedings always entail.

An advance decision, or living will, would go a long way to avoiding that anxiety and expense.

For this purpose, what you need to do is prepare an advance decision, ideally after having completed a health and welfare lasting power of attorney (and probably a property and financial affairs LPA too.)   LPA’s will ensure your family can act on your behalf; and the advance decision will guide them in any difficult decision making.

For more information about LPA’s and advance decisions (or living wills)  you can find out more by clicking here:

W v M and others [2011] EWHC 2443 (Fam)

Full judgement is carried on this page on the Family Law website:

http://bit.ly/w0uXb3

Keywords: Advance decisions, living wills, Mental Health Act 2005, W v M and Another, persistent vegetative state,

This information is for general guidance only. It is not a substitute for taking specific legal advice.

For advice on this topic, you can contact me, Louis Browne, Notary Public by email at:  www.louisbrownenotarypublic.co.uk or telephone:  01733 865021

health and welfare Lasting Power of Attorney

When ‘The Little One’ mentioned the word ‘Hospice’ this evening, it opened the door up for one of the most beautiful and meaningful conversations that two people could ever have on such a sensitive subject. The funny thing about this word “Hospice” is that we have both experienced hospice in the past as both of our deceased partners went through this wonderful program. Yet for some reason, we have not been able to talk openly about this topic between ourselves until today.

We are both advocates of Hospice yet for very different, yet similar reasons. While I tend to be on the spiritual side (I can’t completely let go of my theological background) ‘The Little One’ claims to an agnostic Jew. I always find that funny because he is one of the most spiritual and ground persons that I have ever met. Often misunderstood for his gruff demeanor and direct comments, ‘The Little One’ is rooted in clear thought and perspective. You may not like what he has to say, yet he leaves no dust uncovered. You know where you stand, win or lose. It is really the best way to communicate.

For me, Hospice is a way to celebrate all stages of life. Hospice is not only for the patient, it is also for the entire family of the patient. ‘The Little One’ would say the same thing, yet he would omit the spiritual side of the experience. Yet the spiritual side of Hospice is undeniable because so many lives are transformed by the experience. During my CPE (Clinical Pastoral Education) internship several years ago, I was honored to have the chance to work for a summer in Hospice. I truly saw some remarkable things during my Hospice internship. High profile Doctor’s humbled; broken families reunited; husband’s, wife’s, children, partners letting go. It is as raw as a human experience one can have attending to one’s happy transition. Just as no one should be born into life alone; everyone should be afforded a beautiful sunset to their lives as well. Hospice is one of the tools that allows that to happen.

While we have all the legal paperwork in place, having the conversation out in the open allowed us to speak boldly on the ‘what if’s'…’how are we going to handle this or that’…and merely…;just what are we going to do?’ With the second PET scan scheduled for the first week in December, we will have a clear idea what effects of the radiation and chemotherapy had on the insidious tumor. Will our plans become clear at that point? Maybe so, maybe not!

You see, what ever the oncologist tells us in December, we are going to live each day to the fullest. We are going to do what we can do each day and simply move on. We know some days are going to be better than others, yet why wait around for the Grim Reaper? Let the Grim Reaper chase after us. I’ve used this line in a previous post….”It is a known fact that 100% of the people born are going to die.” So as we continue on with our Monty Python Theme of ‘We’re Not Dead Yet” we’ve decided not to ACT the part, but rather embrace it with a life as full and rich as we can have under the circumstances.

Honest Dialogue often brings out the best (and sometimes) worst in people. However without honest dialogue, what then is communication? While there is not a need for Hospice today, we both know where we stand, we both know what is important to us and we both know that when and if the time comes for this wonderful program, we’ll embrace it, deal with it and make it the best possible experience for all of our family and friends who care to share in the experience with us.

While the effects of Cancer are enormous on everyone, we can’t allow the disease to drive the bus. While ‘The Little One’ and I might share different opinions on life after death; one thing that we do know is that while we are on this earth, we are going to enjoy every second, minute, hour, day, month, year we have left. Life is intended to be lived; we move on with faith, happiness and love. While we can’t avoid pain, we can choose to overcome it. That is simply how Herman and Richard (the first) would want that for us, and for all of you as well!

Over the past weeks, we have talked quite a bit about clinical trials and complementary and alternative medicine and the like.  Another thing to consider as we navigate the complexities of health care and health insurance, chronic illness and palliative approaches to managing life with challenging medical conditions is this: who has access to experimental drugs?  More precisely, what is entailed with the compassionate use of experimental drugs and sorting out who qualifies?

The Mayo Clinic‘s Dr. Timothy J. Moynihan has some specific questions and answers about this very special field.

Question: do pharmaceutical companies allow access to their experimental drugs and treatments?

Answer: Yes. However…

Getting this access involves a long and arduous process.  But in certain cases, the Food and Drug Administration (FDA) allows drug companies to provide their experimental drugs for compassionate use.

How?

The compassionate use program under the FDA’s guidelines essentially reserves the okay for only those patients with no other treatment options.  To receive experimental drugs through the compassionate use program, it may be required that:

• The disease is fatal
• The disease is rare and has no treatment
• Approved treatments for the disease have not worked
• The patient is not eligible for any clinical trials currently studying the experimental drug that may be helpful
• The patient’s doctor agrees that there are no other options and that the patient may benefit from the experimental treatment
• The drug company agrees to make its experimental drug available to the patient

How does someone get experimental drugs?

The compassionate use application process is difficult and often very frustrating.  The hurdles and challenges include any or all of the following:

Image by The U.S. National Archives via Flickr

By Attorney Richard T. Lewis

Many people think that once their Will is executed that they and their family are protected and there is nothing left to be done.  However, they fail to consider what could happen between now and the time of their death.  A person could suffer from a stroke or some other debilitating event that leaves them unable to manage their affairs and medical needs.

A Power of Attorney can be invaluable in situations like as these.  A Power of Attorney authorizes a party to act on your behalf such as paying bills, entering into contracts, and other important matters. The two most common Powers of Attorney are Durable Powers of Attorney and Health Care Power of Attorney.

• Durable Power of Attorney: usually functions the same as a regular Power of Attorney, except that a regular Power of Attorney becomes ineffective once the grantor passes away or becomes incapacitated. A Durable Power of Attorney will remain in effect after the death or incapacity of the grantor. A Durable Power of Attorney will normally not allow a party to make health care decisions on behalf of the grantor.
• Health Care Power of Attorney: allows a party to make health care decisions on behalf of the grantor, including whether to consent or to refuse medical treatment, and withdrawing life sustaining medical support.

When planning for your future, it is important not to overlook what can happen between the time you create a Will and the time of your death.  A Power of Attorney can be an important tool to ensure you and your family are protected.

• Adjuvant therapy.  This refers to a treatment used with a drug or medication to aid its effect.
• Advance directive. Written or verbal instructions for your care, to be used in the event you are unable to make  those decisions.
• CPR.  Cardiopulmonary resuscitation is a procedure used when a patient‘s heart fails, involving chest compressions or electrical stimulation.
• Consulting physician.  This is a doctor with special experience or training who is called in to assist the primary attending doctor.  Will be used in situations requiring specialized care.
• Coordination of care.  An approach to patient care in which all members of the medical team working with that patient join together to plan and organize the patient’s care in the hospital or medical facility and, ultimately, upon discharge.
• DNR Order.  Do Not Resuscitate Order.  This is a signed physician’s order not to attempt CPR should a patient’s breathing or heart stop.  There are separate versions for hospital and home.  Written at the request of the patient or family: must be signed to be valid.
• Durable power of attorney for health care.  This document designates the person you trust to make medical decisions on your behalf should you be unable to do so yourself.
• Healthcare proxy.  A document similar to a durable power of attorney for health care: it designates the person you trust to make medical decisions on your behalf should  you be unable to make them yourself.
• Home care. Services provided in the home, including nursing care and physical therapy.
• Hydration. Providing water or fluid by mouth, tube or intravenously.
• Intubation. Inserting a tube into a patient’s lungs to aid breathing.
• Life-prolonging treatment. Medical treatments aimed at curing or remedying an illness.
• Living will.  A document detailing a patient’s wishes and instructions regarding medical treatments.
• Long-term care. Provided in nursing homes, in the community, or at home, care that supports a patient with chronic conditions and impairments for an indefinite period of time.
• NSAIDs. Non-steroidal anti-inflammatory drugs.  A class of pain medications such as aspirin and ibuprofen.
• Opioids.  A class of pain medications that have some opiate narcotic properties, but are not derived from opium.
• Palliate.  To relieve and ease the symptoms of an illness, disease or disorder.
• Palliative care.  The goal of this medical specialty is to improve the quality of a patient’s life, focusing on relieving the pain, discomfort and stress chronic or serious illness entails.  Palliative care is appropriate at any stage of illness and can be provided at the same time as curative treatment.
• PEG. Percutaneous endoscopic gastronomy.  This is a surgical procedure during which a tube is inserted into the stomach to provide hydration and nutrition.
• Primary attending physician.  A patient’s main doctor.  This doctor will coordinate care and referrals to specialists.
• Resuscitation.  A protocol used in the event a patient’s heart stops beating.  Similar to CPR, it also can involve chest compressions or electrical stimulation.
• Subacute care.  This is short-term care in a nursing home or similar facility, most often for physical therapy.
• Symptom.  A feeling a patient has that points to a disease or disorder.
• Ventilator.  This is the machine that breathes for a patient if he or she cannot do so on his or her own.

Here are some tips for dealing with the stress:

• Get informed.  Local hospitals may have classes specifically about the disease or condition your loved one is enduring.  And organizations such as Hospice, the Red Cross and the Alzheimer’s Association regularly offer classes on caregiving.
• Accept help.  Make a list of the ways that others can help you and let the helper choose from that list what he or she would like to do.  One friend might be happy to take the person you are looking after for a drive or a walk a few times a week.  Another might make the library run for you, or pick up some groceries.
• Don’t give in to guilt: Feeling guilty or inadequate to the task is perfectly normal.  Understand, however, that there is no ‘perfect’ caregiver.  You are doing your best at any given time.  The housework may not get done on schedule; you may eat the same thing for three days in a row.  That’s okay.  And, again, do not feel guilty about asking for help.
• Join a support group. A support group can be a wonderful source of encouragement and advice from others in the same circumstances.  You may well make some new friends that way, too.
• Commit to staying healthy. Eating properly is essential.  So is getting your rest.  Take care of your own grooming, too.  And find the time to be physically active every day.
• Stay connected.  Make a sincere effort to stay in touch with family and friends.  Set aside time for socializing (even if it’s just a walk with a friend, or a cup of tea and a chat).  Make plans that get you out of the house regularly.
• See  your doctor. And make sure your doctor knows you are a caregiver.  Get your flu shot and any recommended screenings.  Do not forget to mention any concerns or symptoms you have.

Taking a break is thought to be one of the best things you can do for yourself, as well as for the person you are looking after.  While is may be difficult to leave your ‘patient’, you will both benefit from the time apart.  Many communities have some sort of respite care available, including:

Now comes the hard part: discussing what you want with your friends and family.

No matter how meticulous and careful you have been up until now, planning for all contingencies, considering the strengths and weaknesses of your support team, respecting the personal belief systems and traditions of your loved ones, you are bound to run into trouble somewhere along the way.  And no matter how detailed and farsighted you are, when the actual event takes place, things will come up that are not part of your directive.  Count on it.

You are going to have to speak to the family, and any friends who are part of the plan, so they are very clear about what you want.

• It is far more likely that your wishes and requests will be honored if you have discussed them with lots of people, not just a few.  It may feel unnatural to share this kind of thing with more than just your spouse or partner, but you need to spread the word.  Really.
• The family can help clarify aspects of your directive if they can bring up conversations or discussions you have had with them in the past – ‘I know what dad would have wanted here…remember when we talked with him about that friend of his that suffered so a few years back when he had that massive stroke?  It’s kind of like that for dad now’…that sort of thing.
• Nothing keeps the peace better than advance preparation.  Discussions with family and friends will help prevent those awful confrontations and scenes we have all witnessed in ER’s and ICU’s: what do we do now, and who decides?  A terminally ill or badly injured loved one scares and stresses everybody.  And keep in mind that while a family member may have no legal authority to make decisions for someone incapacitated, they often feel they are morally obliged to take over or speak up.  Clear, written directions make all the difference.

• Your chosen health care proxy – with clear directions on where to find the original.
• Family members and loved ones.
• Your primary care physician, hospital or health care facility.  See that a copy is placed in your medical record; be sure your doctor is supportive.
• Anyone specifically named in the directive.
• A copy can also be sent to your attorney, kept in a safe deposit box or with your will, trust documents  and other important papers.

Uh oh!  I’ve changed my mind!

Think of your AHCD as a process, a work in progress.  Things change – your circumstances, your opinions, your beliefs.  Do not put off organizing a directive because you may change your mind later on.  AHCD’s can be revoked, replaced, amended, re-organized.  As long as you are capable of making your own decisions, you are free to change your AHCD.  It would be best to check your state’s laws for the proper way to amend or cancel your directive, and of course, notify everyone involved so they have the latest version of the form.

When should you review or assess your AHCD?  Examine your directive every few years, or when any of the following happens:

1. Decade: when you start a new decade in your life.
2. Divorce: when you experience a divorce or other major family change.
3. Diagnosis: when you are diagnosed with a serious health condition.
4. Decline: when you experience a major decline or deterioration in your health, particularly when it reduces your ability to live on your own.
5. Death: whenever you experience the death of a loved one.

(Special thanks to American Bar Association, Family Caregiver Alliance, the Eldercare Locator and Helpguide.org)

An Advance Health Care Directive (AHCD) is important.  Grown-up.  Considerate, too. Dull? certainly.  Threatening? maybe just a little.  A bit creepy?  sort of.  But indefinitely put-offable? no.   So let’s get to it.

You know how, when you and the family all get together and start telling stories, there are lots and lots of different versions of the same event?  And how we each stick to ours, insisting our version is the one?  How Aunt Mary told you a bunch of stuff she never shared with your sister?  And how your dad’s recollection of what your mom wanted is really different from the way you remember things?  Well, that’s how it is with a dying person’s last wishes.

Not to be insensitive here, but it is nearly impossible to know what a gravely ill or injured person wants – especially when we are all under the relentless pressure of a health crisis – unless it has been discussed well ahead of time.  There is nothing like the stress and uncertainty brought on by an emergency to fuel old family animosities.  We argue and fight about the best way to treat the patient when we really should be focused on the loved one we might lose, comforting each other, sharing time with each other. It really is a quality of life issue: organizing care and treatment preferences well ahead of time can make all the difference.

Here are some specifics to think about as you prepare your AHCD:

• What medical treatments and care are okay?  What procedures or protocols scare you?  Do you need to find out more information about end-of-life options?
• Who is going to be making the decisions for you if you cannot make them on your own?  And remember, there are financial decisions and health care decisions.  It could well be the same person, but does not have to be.  The same person handling both may not be right for you.
• Do you want to be resuscitated if you stop breathing and/or your heart stops?  Do you understand how this could happen and what the procedures are?
• Do you want to stay at home if you are seriously or terminally ill?  Go somewhere else?  Be hospitalized?
• How is your care paid for?  Is your health insurance adequate?  How will loved ones manage while caring for you, or grieving and making final arrangements?
• How much do you understand about what happens when a person dies?  Is the family prepared for all the changes that will ensue?

You will also want to go over things with your primary care physician.  Can you talk comfortably with your  doctor about this?  You really should be able to.  Keep in mind that he or she is probably going to be in charge of your care when the directive and your instructions come into play.  Your doctor can:

Let us remind ourselves that planning and preparing for the inevitable – our own deaths – does not, in any way,  hasten the arrival of the Reaper or invite disaster.  It is not morbid or gloomy or pessimistic to prepare our families and loved ones for the future – it’s thoughtful and considerate, and hugely appreciated in stressful times.  Imagine that you are terminally ill or gravely injured and unable to communicate.  Think how frightened those around you will be.  Having a set of directions to guide them would be such a help.

And that is exactly what an Advance Health Care Directive (AHCD) is: a set of directions that instructs others about your medical care and treatment should you be unable to make the decisions yourself.  That’s it.

The document becomes effective only under circumstances set out in the form itself, and allows you to do either or both of the following:

• Appoint a health care agent: The AHCD allows you to name a health care agent (also called a ‘durable power of attorney for health care‘, a ‘health care proxy‘, or an ‘attorney-in-fact‘), the person who will have the legal authority to make health care decisions for you should you be incapacitated.  This agent is typically a spouse, but could be another family member, a friend or someone you believe will see that your wishes are respected.  This person will have the authority to make decisions regarding artificial nutrition and other life prolonging measures, or not.
• Set out instructions for health care: The AHCD offers you a way to prepare specific written instructions for your future health care in the event of a situation in which you cannot speak for yourself.  You can outline your wishes about life-sustaining medical treatments if you are terminally ill, or permanently unconscious.  Also known as a ‘living will‘.

• Must you have an Advance Health Care Directive form to stop treatment near the end of life? No.  Treatment can be stopped without a directive if everyone involved agrees.  If there are disputes or disagreements, however, decisions get trickier.  This is where a directive is really helpful.
• If I name a proxy, do I give up the right to make my own decisions? Again, no.  You always have the right, while you are still competent, to override any decisions make by your proxy.  You may also revoke the directive.  Naming an agent does not take away any of your authority.
• Does an advance directive mean ‘do not treat’?  Your directive can detail both what you want and what you don’t want.  And even if you do not want treatment to cure you, you still have access to treatment to relieve pain and discomfort.
• Aren’t these directives really only for the very old?  Think about that for a minute.  A younger adult actually has more at risk here.  A bad accident or serious disease could keep a younger victim alive but insentient  for many years, especially given medical advances today.  So all of us over 18 should organize a directive.
• Shouldn’t I wait until I am sure what I want before preparing a directive? Just get one started.  You can always alter it should you change your mind about something later on.  Think of it as part of a process and not a stone-chiseled document.

AHCD’s and living wills are not complicated instruments, but do need careful thought.  And while you are not required to use an attorney to prepare one, it would be a very good idea to do so.  You want to be sure that your personal instructions are accurately stated.  To be enforceable, the document must be clear.  Laws regarding AHCD’s differ among the states, so learn what applies where you live: State Laws.

Children as young as eighteen are entitled to privacy of their health care information. If you want to be a part of your college-aged child's health care decisions, it is helpful for them to sign a HIPAA release.

There are a lot of things people do to help our children prepare for college.  Giving your child some good advice, buying the right-size sheets for those extra-long dorm beds, and arranging for the purchase of all of those books.   But what about arranging for your child’s health care?

Although he or she may still be “your baby” and covered by your health insurance, unless your child is under the age of 18 they are legally an adult.  This means that your college-aged child is legally in charge of their own health care decisions.  And your college-aged child has a right to the privacy of their health information, which prevents others — including you — from accessing your child’s that information.  So even if your child has a medical emergency, their doctor may have no responsibility to contact you and may even be legally prevented from doing so.

One good way to stay informed and maintain your involvement in your child’s health-care decisions is to have your child sign a HIPAA Release.  HIPAA, which stands for the Health Information Portability and Accountability Act, is a law that creates strict privacy protections for medical information.  By signing a HIPAA Release, your child gives their doctors permission to share health information with you.  This allows your child’s doctors to alert you when your child has a new medical condition.  It also gives the doctors permission to share diagnoses and discuss options for your child’s treatment.  For even more security, your child could also sign an Advance Health Care Directive.  This would make you your child’s health care decision-maker and obligate your child’s doctors to inform you and consult with you about your child’s health care.

To set up a HIPAA Release and an Advance Health Care Directive for your child, contact Christl@DeneckePlanning.com or see DeneckePlanning.com.

Helping plan for your family’s future at every stage of your life.

Now, just a month later, my friend’s sister is loosing her battle with cancer. Grateful as she is that she never had to tell her mother that a daughter had predeceased her, imagine her anguish at finding out that nothing was ‘in order’ for her sister, in spite of years battling cancer. The sisters live several hours, and states, distant from each other, so, in what well may turn out to be a last visit with each other, instead of spending those few precious days together, my friend needed to be sure that her unmarried and childless sister’s affairs were in order: to find out what end of life care she wanted, to be sure where her sister’s assets were to be directed, and all of the other hundred of small details that needed to be covered. Of course, she did so with love, but on top of the fresh pain of loosing her mother, it was a burden we wish she had not had to endure.

Back home today, with hospice and other arrangements made for her ailing sister, my friend shared with me, her ‘adopted sister’, that she was happy that she could rest comfortably knowing that I, who  worked in the legal field for more than 25 years, most assuredly had all the necessary papers for me and my husband, so that I would never put my daughters through what she has been through this week.

Uhmmmmm, no.

Yes we have wills. Made in 2006, before my husband was diagnosed with chronic lung disease. Before my husband had a ‘mini-stroke’. Before he was diagnosed with atrial fibrillation. Before I fell and cracked my head on a footstool. Before we had to sit in the basement, for the first time ever, waiting out a tornado a day after one killed more than 100 in Joplin. In other words: when we didn’t know any better?

I should know better. After all, it was just this week that I posted a blog letting everyone know that if they don’t feel they can afford an attorney, they should seek out a paralegal service and get a will, medical directive and power of attorney. We just figured as long as we knew what each other wanted as far as medical care, no need to put it in writing. The truth is, unless the medical staff has a signed ‘living will’ they must keep treating, no mater what a spouse, child or anyone else says. So this weekend I will draft those papers for me and for my husband, and take that burden off my loved ones.

Please do the same.

What’s available from the State of Jalisco?

For lots of years lakeside, living wills for palliative or end-of-life care have been drawn up (and paid for), but have had no legal standing.  The lakeside doctors typically recognize the desires of their patients who draw up such documents.  The snag comes when the patient goes into a private hospital in Guadalajara, in which case, the attending doctor changes.  The local doctor typically has no further input into the patient’s care. Without legally-binding health care directives, the hospital is not obliged to abide by the patient’s requests.

There is progress in the State of Jalisco, but it is not yet clear exactly ‘how much.’

July 30, 2011, the State of Jalisco passed legislation improving aspects of ‘legal’ guardianship.  With that legislation came a provision for establishing health care directives specifically for therapeutic treatments (Source: Lic R. Espinosa and R. Rodriguez).  Therapeutic treatments are typically ‘curative’ only and do not provide patient’s rights for palliative or end-of-life care as provided in the Mexican federal legislation noted below.   

If Not From Jalisco, then, From Where?

From Other Mexican States? Possibly.

The Mexican states of Coahuila and Mexico (DF) have health directives in their civil codes that are ‘legally recognized’ in the State of Jalisco.  This option can be explored to determine the type of health care directive you can obtain from one of these states. And, you should check to see if there is a ‘state’ residency requirement, which means do you have to be in that state or living in that state a certain length of time before you can have the health care written.

For assistance, you can check with Notario Sergio Macias Aldana (he works out of the office of Notario 5), Lic Roberto Espinosa, or Lic Ana Villanueva (who is the legal counsel for Puerta de Hierro hospital and used to working with health care directives from other Mexican states and international).

From The Mexican Federal Government? Yes!

In 2008, Mexican federal end-of-life legislation passed allowing for a person to designate a person(s) to act on his/her behalf when they cannot speak for themselves in any way and allows for patient’s rights and health care directives for palliative and end-of-life care.   This legislation supersedes the Jalisco state laws. The catch here is that it is only for persons who have been diagnosed with a terminal situation with less than an expected 6 months to live.

There are many situations, especially in the aging process, where someone might not be able to speak for themselves in anyway and not be terminally ill (i.e., stroke,  dementia). In that case, the legislation does not apply (this is confirmed through several interviews and the legislation; see Part II of the publication).

From North Of The Border?  Yes!

You can get a living will (it comes with various names) made in the state from which you come.  Some states in the US, such as Nevada, have a living will (health care directives) embedded in the body of a durable power of attorney for health.  Most states have separate documents, and many of the documents do not require a notary.

If you want to use the document in Mexico, it has to be notarized (by a US notary) so that the notary’s signature can be ‘apostilled.’  

By completing a NOB living will/health care directive (aspostilled and translated) and the Mexican federal legislation, you stand a better chance of getting the care you want, Or Don’t Want, when you cannot speak for yourself.

For a sample NOB living will, or related document, for your specific state, check AARP (i.e., Five Wishes) or NOLO press.

If you get your health care directives from NOB, make sure they are notarized and that they are accompanied by a durable power of attorney for medical decisions.

]]> http://wealthinperspective.wordpress.com/2011/05/11/five-wishes/ Wed, 11 May 2011 13:45:13 +0000 Harry J Abrahamsen http://wealthinperspective.wordpress.com/2011/05/11/five-wishes/ http://pauldavidwilliams.wordpress.com/2011/04/29/personal-finance-repost-from-httpseekwisdomfindwealth-blogspot-com/ Fri, 29 Apr 2011 15:35:00 +0000 Paul Williams http://pauldavidwilliams.wordpress.com/2011/04/29/personal-finance-repost-from-httpseekwisdomfindwealth-blogspot-com/

Here is some financial advise I found on another blog http://seekwisdonfindwealth.blogspot.com/ Check it out.

Thursday, April 28, 2011

The Hood vs. Harvard Debate by Patrice Cunningham Washington
Remember the first time you heard the pastor say that “Sin is sin,” meaning if you told just a little white lie or savagely murdered someone you were pretty much in the same boat with God. Wasn’t that a hard pill to swallow? Apparently, it’s a hard pill for many even when this concept is extended to talk about money matters.  There’s no separation of what bad decision you get to make because you did or did not go to college. If your issue is renting spinning rims or leasing a car you really can’t afford, the principle remains the same in my holy book of personal finance: poor money management is poor money management. Period.

It makes no difference whether you were educated in “the hood” or at Harvard, if you don’t have personal finance education you will continue to make poor decisions and therefore limit your potential to compete successfully.  But, it never fails that when I write a blog post about poor spending behavior, I receive an overwhelming amount of comments from people who want to justify their opinions with “I’m a college graduate . . .” as if that means that A. their thoughts are superior to others or B. they don’t share in the same mismanagement.  Let’s be clear: Having a college degree does not somehow make a person intellectually superior in the area of personal finance. Trust me. I know firsthand. I’m a college graduate who left one of the best institutions on the West Coast with an embarrassing amount of debt that did not include student loans. I had grants, scholarships, parental support and a full time job all four years. I was a Dean’s List student that unfortunately was just ignorant about money. I wanted the t-shirt and frisbee being offered for signing up for credit cards and eventually received way more than I bargained for, i.e. high interest rates, annual fees and 18 months of putting every extra penny I earned towards debt. Today, more than two thirds of the women I counsel are actually college educated.  I have coached women with degrees in finance who run corporations for other people, but can’t balance a checkbook if you paid them extra to do it. I wasn’t alone in my ignorance.  Last I checked, to our own detriment personal finance has yet to be made a federally mandated course on high school and college campuses throughout this country.  Many college graduates make financial mistakes just as much as non-grads do, but somehow it becomes masked in some sort of warped superiority complex.  In child’s play, it’s a conversation that sounds something like, “Betcha my debt is better than your debt . . .  because I went to college!” The reality is that most people who are financially savvy fall into two categories.  Either they were taught to make wise money choices growing up or they, for one reason or another, sought out personal finance education on their own. Neither of those groups are necessarily determined by this idea of “Hood vs. Harvard.”  Sure, one might argue, that going to college makes you more aware of the need for wiser choices, but it can’t make anyone actually choose wisely.  It takes a personal decision and personal responsibility, hence, the term personal finance. It’s not about just knowing better, but doing better.  What good is your college degree in a debate about personal finance if you haven’t learned and applied the principles? While it’s flattering to receive any comments of praise for my thoughts, if they are encompassed in the fact that my “keep it real” spin on financial literacy education is just for “those people,” i.e. the “uneducated, low-to-moderate income people from the hood” then keep the praise.  I’m not writing to impress fellow college graduates in putting “those people” down. I’m writing to assist and encourage any and everyone who could use a little help in changing their mindset towards personal finance education and wealth creation.

Personal Finance Advice You Never Hear by Patrice Cunningham Washington

Last July, the unthinkable happened. My father-in-law died suddenly at just 58 years old. Both devastation and reality gripped our family. For my husband (his eldest child) and I, it was probably the first time we had considered as a couple the “what-if’s” that surround mortality and the fine, yet vastly important details which frame it. The truth is, even as a professional in the personal finance industry, I hadn’t invested much thought beyond making sure we had life insurance and a last will and testament. We were like so many who never think about preparing for our demise until we lose someone close. But in actuality, at some point, this type of circumstance will hit everyone in some capacity. Either we will experience the tough decisions associated with the possible demise of a loved one OR we will leave a loved one to make such difficult decisions on our behalf.
This month’s issue of Black Enterprise features a great article, Why You Need A Living Will, by writer Bridget McCrea. According to the article, there is a recent report from the National Center for Health which estimates that 13% of African Americans have a living will in place compared with 32% of whites. The problem is that living wills are a personal finance topic rarely, if ever discussed. Because of that, most people don’t even know what it is or how it is used. “A living will, also known as a healthcare proxy, is a document that allows people to express their wishes regarding specific medical treatments in the event that they are dying, incapacitated, or otherwise unable to communicate their preferences.”

Unfortunately, it’s easy to slip into selfishness when the life on the line belongs to a loved one. Although we might make the decision to keep them alive for as long as possible no matter what the cost, knowing their true wishes may technically dictate otherwise. Creating a living will is not easy, but very much necessary. McCrea suggests that we “start by envisioning a scenario where you are unable to make your own decisions. Consider exactly how you’d want your healthcare handled.” As difficult as it may be, remove the emotion. Think about the relief your family will experience because you are clear about your expectations. For many, these type of circumstances only make an already challenging situation that much more stressful.

Here are just a few of the Living Will Do’s & Don’ts as featured in the article:

DO take some time to plan ahead and consider what your wishes would be if you couldn’t make decisions on your own.

DON’T think that you don’t need a will because you don’t have a large amount of assets.

DO consider as many “What If?” scenarios as possible when drafting your living will.

As someone who is surrounded by personal finance information on a daily basis, I’ll admit that I am not a part of the 13% of African Americans that reportedly have a living will. I will promise, however, that I will be within the next 30 days. By the time my husband or I need it, it’ll be too late to think about writing one, so I’m starting today. Will you?

Related Articles

• Stuck paying a loan for someone else: do I have recourse? (blogs.confused.com)
• Top five tips to improve your personal finances (pinkbananaworld.com)
• Gamifying personal finances: what works and what doesn’t (boingboing.net)
• Personal Finance (msbeaker.wordpress.com)
• Benefits of Personal Finance Software (financialcoachingdavidkimball.wordpress.com)
• Top five tips to improve your personal finances (queercents.com)
• Who’s your personal finance guru? (mnn.com)
• Spring clean your personal finances (sfgate.com)
• Why You Should Have A Living Will (hellobeautiful.com)
• Tips Series: Basic Tips on Personal Finance (helpwithdebtnow.com)
• 5 Scams That Ruin The Black Community | Fromhttp://seekwisdomfindwealth.blogspot.com/ (pauldavidwilliams.wordpress.com)
• The Financial Literacy Toolkit (getrichslowly.org)
• Financial Aid Podcast Debuts JobCast, Helps Students and Graduates Find Jobs (helpwithdebtnow.com)
• 5 Investment Ideas for Recent College Grads (money.usnews.com)
• Best Money Tips: Personal Finance Tips for Recent Grads (wisebread.com)
• Determining How long it will Take To Double Your Money (beast4romtheeast.wordpress.com)
• Despite Soaring Costs, College Still a Smart Choice (livescience.com)
• Considering ‘Good Debt’ And How to Use It (usnews.com)

To ensure that their interests are protected, we encourage members of the baby boomer generation that have not documented their wishes to begin doing so. Some baby boomers might not feel they have wealth worth fighting over. However, wealth is relative. People have fought and harmed others over homes, a few thousand dollars, and social security receipts.

A family member may try to gain control of another member’s wealth is by convincing the person or others that the person is no longer able to make decisions for himself; instead, the family member might argue, the baby boomer’s decisions require the family member’s oversight. This can occur in several ways, such as taking advantage of lapses in the baby boomer’s judgment; arguing that the baby boomer is of diminished capacity; moving in with the baby boomer and limiting the access others have to the baby boomer; intimidating, threatening, or harming the baby boomer; and drawing on the baby boomers emotional ties (think of a leech that moved in and is constantly seeking money).

A baby boomer can protect himself by preparing an advanced health care directive (AHCD) that establishes the care the baby boomer wishes to receive under a set of circumstances, and designates a person to carry out those the wishes. Each state has its own set of rules, but, it might be possible to create an AHCD, as well as a separate power of attorney (POA) appointing a person to make decisions for the baby boomer under another set of circumstances, such as incapacitation.

In creating these documents, we suggest the baby boomer do and consider the following.

1. Identify your wishes, such as the care you’d like to receive and what you want your family and others to receive.
2. What are you unwilling to sacrifice, and what sacrifices are you willing to accept?
3. How should your family members be impacted by your decision?
4. What are the measurements used to determine if one of the triggering circumstances in the AHCD or POA are met?
5. What is the best route to ensure your wishes are carried out? For example, if you want your wealth to go to your children, is it rational to have a sister with a tendency to filch make your decisions in lieu of your children? Likewise, if you want your children to share equally, does it make sense for the child who has historically put his interests before others? 
6. Who would be the person most likely and best suited to carry out your wishes? Be honest with yourself; sometimes your favorite child is not the best choice. Quantify what are the appropriate measures of the best choice. Who can you trust - and who can you not trust – to safe guard your well-being and interests as your health deteriorates?
7. Would it make sense to designate ultimate oversight, or all oversight, to an independent third-party? This might be the best way to dampen in fighting and facilitate equity between the family members.
8. Who should have copies of your directives and where should copies of your directives be saved?
9. What controls can you establish to ensure that your wishes are being carried out (and that you’re not locked in a closet all day)? For example, should you require independent monthly evaluations? Have a nurse that reports to an independent third-party, such as an attorney?

With the size and age of the baby boom generation, we foresee a surge in family disputes over the control of a baby boomer’s care – and thereby control the boomer’s wealth – as the generation continues to age. We project that the demand on Social Services, the court system, family law attorneys, family evaluators, and related industries and services, will increase as battles over the control of a baby boomer’s decisions begin to mirror those of child custody battles. We anticipate that many of the tactics used to isolate and control children in custody battles, such as alienation, will be increasingly deployed on baby boomers – at a time when the boomer might need interaction with family and friends the most. We’re also concerned that there will be an increasing number of baby boomers who will be put at risk or harmed by relatives seeking to control the baby boomer’s wealth.

As such, we feel it is important for baby boomers that have not all ready put serious consideration into their end-of-life or long-term care decisions to begin doing so; and for those who have not documented their decisions, to do so.

The three main types of documents used in planning for health care decision include: 

• A statutory advance health care directive form set out in Prob C §4701;
• Preprinted forms, including the California Medical Association (CMA) form, the California Hospital Association (CHA) form, or a simply worded form from the Institute for Healthcare Advancement; and
• An attorney-drafted custom form, complying with statutory requirements.

Selecting the appropriate option depends on the health care choices the client wishes to make. The CMA form is the most widely used because hospital staff, hospice workers, doctors, and other health care providers accept it as a legally binding document. Using the CHA form may be prudent if the person signing it wants additional protection for not prolonging his or her life in situations not covered in the CMA form. The Institute for Healthcare Advancement, a nonprofit organization, has developed a form specifically for those 90 million American adults who are unable to read above a fifth-grade reading level; this form is useful for a client who may have trouble reading or comprehending legal documents.

An attorney-drafted form can be problematic because it may be questioned by an entry-level health care facility employee who is familiar only with the preprinted forms; this can cause delays in treatment while the document is being approved by a hospital’s legal department. Attorney-drafted forms may occasionally be appropriate for a client with an unusual health condition or specific health care wishes that can be effectively communicated only in a custom document.

For information on these options, including sample forms, and several related documents, go to California Powers of Attorney and Health Care Directives, chap 8. The topic of advance health care directives is discussed in CEB’s program Fundamentals of Estate Planning, which will be live in May and June 2011.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

I sat around a table with friends and wine last Friday night, and learned that there are strong opinions about this (which doesn’t surprise me). My friends in question were a newlywed couple, 30 years old, and the conversation started jokingly as they mentioned they’d discussed “legal guardians” for their pets if they should both die. Our other friends, slightly older and with children at home laughed and said it hadn’t occurred to them to name guardians for their pets. The conversation wore on, and went down the more serious path of who we as individuals would trust with our most personal wishes at the end of life. 

There is one stance that I hear often, and that is “my spouse knows me best, and will know what to do in the situation where I can’t speak for myself.” This was one of the cases on Friday. In theory, I understand this position, and find it amazing and wonderful that there is this kind of trust in a marriage. What worries me, is that I wonder if most couples have actually had the conversation. I mean, the details, like, if I’m laying in the hospital on a ventilator, brain-dead, I need you to stop the vent. Can you imagine your 30 year old spouse in that condition? Can you imagine making that decision? It worries me that these details aren’t actually discussed, but an assumption is made that the other partner will know what to do. 

I had another very interesting conversation recently with a young colleague regarding this issue. She has chosen her sister, rather than her spouse to be her health care power of attorney. Her reasoning: she doesn’t believe her spouse will be able to handle the emotions if such a situation did ever occur. She trusts her sister to be level-headed and respect her wishes during such an emotionally tumultuous time. 

All of these questions leave me in a bit of a pickle. Who can I trust to execute my wishes in such a situation? Who will really respect my wishes, and be able to adapt to a terrible circumstance if it does occur? This topic is worth some brain-time, even for young people. I hope that anyone who reads this will at least chew on the possibilities and will talk to someone about where they stand.

Whichever side of the end-of-life-care debate you are on, this article is mind-blowing (and reads like a novella). Read it all, and pass the link to everybody you know.

My wife and I each did a quick on-line Will when our first daughter was 5 months old and we were getting ready for our first family trip to Mexico!  Shortly after that we sat down with an estate-planning attorney and had a complete set of documents prepared and executed.

Estate plans are NOT just for the super wealthy!  The standard documents – Will, Power of Attorney for Healthcare and Property, Revocable Trust, Living Will - are appropriate/necessary for the average Joe.

A Will provides for the disposition of assets in your individual name, names an executor of your estate and for a parent, names the guardian of your minor child(ren). 

A Power of Attorney for Healthcare grants medical decision-making authority to another should not have the mental capacity to do so yourself.  Likewise, a Power of Attorney for Property grants authority to another to manage/access your finances should you be incapacitated and unable to do so.

A Revocable Trust is a separate entity that can hold title to assets for your benefit and provide for continuing management and administration of those assets for the benefit of you and your loved ones should you become incapacitated.

A Living Will provides for your end-of-life care decisions.

This is my self-proclaimed “estate planning week” as I plan to have a few more blog posts this week on the topic.  So, for starters, read the following article from Forbes.Com for some more insight.  I highly recommend going to an estate planning attorney – a specialist/expert in this part of law.  Afterall, would you go to your primary care physician for heart surgery???

How To Write Your First Estate Plan
Ashlea Ebeling, 01.26.11, 6:00 PM ET

Have you just gotten married? Had kids? Gotten an inheritance?

Many people put together a first estate plan because of one of these triggers. Others are inspired to sign their first, overdue will after a friend dies, or when they’re planning for a trip and start thinking, “God forbid the plane crashes.” (No matter that there were no airline fatalities in the last year, and there are 30,000 deaths on the nation’s roads a year. Fear is fear.)

What about saving estate tax? That used to be the big sell for estate planning, but no more. In December, Congress set the amount an individual can leave someone other than a spouse without worrying about estate tax at a generous $5 million per person ($10 million per couple) for this year and next. (Technically, it is set to drop back to $1 million per person Jan. 1, 2013). Plus, 22 states and the District of Columbia have their own estate and/or inheritance taxes.

In Pictures: 10 Steps To Create Your First Estate Plan

Whatever motivates you, fine. The point is–whether you’re in estate tax territory or not, if you don’t have an estate plan, you need one. (And if you have a really old one, you probably need a whole new one. Get advice on rewriting your will in line with the new law, here.)

“It’s getting your affairs in order and protecting your family,” says Jeffrey Hart, an estate lawyer with Tarlow, Breed, Hart & Rodgers in Boston. “You’d be surprised at the number of wealthy people who wait until they are in their 50s or 60s before they do anything other than a simple will,” he says.

There’s a lot more to an estate plan than just a will, even for folks who don’t need a more complicated estate-tax oriented version. You might have pieces of it already–a living will signed when you had elective surgery or a beneficiary form filled out for a 401(k) when you got your first job. You need to make sure the pieces fit together. Kelly Phillips Erb, an estate lawyer with the Erb Law Firm in Philadelphia, had clients (a married couple) who had been together for years, yet the husband still had an old girlfriend listed as his primary beneficiary on his individual retirement account. After reviewing the form, he changed the beneficiary to his wife.

That’s right. It’s the beneficiary forms you fill out for retirement accounts and life insurance that control who gets those assets–not your will. Yet a will, with provisions for the care of minor children, is still the cornerstone of a plan. Under the simplest version, it’s just about who gets what if you die. In an “I love you” will, a spouse typically leaves everything to the surviving spouse. There is a standby trust for the benefit of the children if both parents die. And there are incapacity documents: a financial power of attorney where you name an agent to make financial and legal decisions on your behalf if you’re incapacitated; a health care power of attorney where you name an agent to make health care decisions for you; and a living will, where you state your end-of-life care wishes.

If you have kids, there are some tough and important issues you must resolve in your will. First, you must select a guardian to care for your children should both parents die. You must also name a trustee to manage any money that is set aside in a trust for the child’s care. (Remember that standby trust, should both parents die?) The same person (or a different one) should also be named as the successor custodian for any custodial bank accounts (UGMA and UTMA accounts they’re known as) you have in the kids’ names. (If you’ve got Section 529 college savings accounts for your kids, you may have filled out a form naming a successor owner for the trust, which can include the child himself. Just make sure the successor owner fits in with the plans you’ve made in the will.)

People wrestle with whom to name as executor of the will–the executor’s job is temporary, handling the estate after you die, but it wraps up. The guardian and trustee jobs last much longer and therefore deserve just as much, if not more thought on your part. Should the guardian and trustee be the same person? “Some people like to have separate people as a sort of check and balance on each other, although some people think, ‘If I’m going to trust you with raising my children, I’ll trust you with my money as well,’” says Hart.

In Pictures: 10 Steps To Create Your First Estate Plan

It’s also worth putting some thought into the terms of the standby trust for your children. Do you want to direct the trustee to dole out half of the money in the trust when your kid turns say, 25, and the balance at age 30? Or do you want to set up a standard so the trustee has discretion to dole out money in the best interest of the child and for an unlimited period. That could mean making no distributions, if say, the kid got sued or is in the midst of a nasty divorce. Such asset protection language is becoming more popular among clients, says Hart. But it could also burden your offspring with the hassle of living with a trust for a long time.

Some attorneys still push trusts for estate tax savings. Couples in estate tax territory may want to put at least $1 million into a bypass or disclaimer trust at the first spouse’s death to preserve his or her estate tax exemption. The surviving spouse has access to the trust’s earnings and principal, but what’s left in the trust “bypasses” the survivor’s estate. As you get wealthier, the list of tax savings strategies worth considering grows: family limited partnerships, irrevocable life insurance trusts, lifetime gifting, qualified personal residence trusts, grantor-retained annuity trusts, private foundations and charitable trusts.

In Pictures: 10 Steps To Create Your First Estate Plan

Business owners have their own special needs when it comes to estate planning. You have to consider what would happen to your business–would your heirs pay the bills and shut it down, hire a business broker to try to sell it or perhaps sell to key employees. If you have a partner, you should consider setting up a buy-sell agreement that says what happens to the business if one or the other owner dies or gets sick.

Once you put together all the documents, sign them (and get them notarized if required in your state). And make sure your executor has the latest copies and knows where you’ve stashed the originals for safekeeping. What if you’re afraid you’ll want to change your plan? No worries.

“People get really nervous that they are doing something permanent,” says Erb. “The nice thing about a will is you can rip it up tomorrow and redo it.”

Contrary to popular belief, estate planning is not just for the wealthy or for older generations.  Estate planning is for everyone.  In fact, estate planning is most important for young adults with children.  Estate plans are helpful to transfer assets to the next generation, but they also set up mechanisms for providing for and caring for children in the event of the death of a parent or parents.

If you do not have an estate plan, you are allowing your state laws and a judge determine what happens to your assets and your children.  As much as I appreciate judges, I would rather determine what happens to my children.  Wouldn’t you?

Image via Wikipedia

Don’t wait until you are about to go on a trip out of the country and leave your children with your parents.  Plan now!

What do you need?

At minimum, you need a last will and testament, a living will, and a durable power of attorney.  You may also have other documents for your 401(k) plan, IRA, or life insurance with beneficiary provisions.  It is important to include these as part of your plan in order to ensure that the proper beneficiaries are listed and listed in accordance with your overall plan.

Last Will and Testament

Most everyone knows that your Last Will and Testament will govern the disposition of your assets to others.  

If you have children, there are additional issues that need to be resolved in your will.  You must select a guardian to care for your children.  You can also create a trust for your children and name a trustee to take care of the money in the trust for the care of your children.  This is no small matter.  The same trustee can also be named as a custodian for custodial bank accounts (such as those created by the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act).  

Your will also names either an executor or administrator, which is the person who handles your will after you die.

Living Will

Your living will determines end of life care wishes.  In other words, do you want to stay on life support or not.  Unfortunately, litigation arises out of these matters frequently causing rifts in families and relationships.  You’ve probably heard of several instances on the news in recent years where end of life decisions resulted in litigation, back stabbing, and finger pointing.  Don’t let this happen to your family.

Durable Power of Attorney

In a Durable Power of Attorney, you name an individual to take care of your financial and medical affairs in the event that you are incapacitated and unable to make decisions on  your own.

The bottom line:  you need an estate plan.

If you are interested in learning more about setting up your own estate plan, email me at lbailes@rs-law.net or call me at 816-229-2132 for a no cost, no obligation consultation.