Monday, February 11, 2019

Your Will can do much more than just Dispose of your Property

A Will is commonly defined as a document which disposes of a person’s property after their death. But   it can be much more than that, or sometimes less. A Will is also known as a “Last Will and Testament”.  
It is helpful to think of a Will as being a document that gives your instructions regarding things you want to happen after your death.
-         Specify the people (Guardians) who will care for and raise your minor children.
-         Protect an heir’s eligibility for Medicaid, SSI and other public benefit programs.
-         Protect your child or other heir from losing their inheritance due to a bad marriage or financial problems.
-         Encourage heirs to engage in desired behavior (e.g. get a college education).
-         Maximize the use of tax exemptions and credits and give directions regarding the payment of taxes.
-         Create protective trusts for family members who are young, or spendthrift, or otherwise unable to manage an inheritance.
-         Protect your estate in the event that your surviving spouse remarries.
-         Make inheritance tax deductible gifts to charities.
-         Provide information and directions regarding your social media and other online accounts.
-         Resolve family disputes before they arise.
-         Put conditions or restrictions on inheritances.
-         Waive costly bonding requirements to save money.
-         Authorize the creation of custodial accounts for younger beneficiaries.
-         Disinherit someone.
-         Limit the term of a gift (e.g. for the life of the heir)
-         Empower your executor, trustee, and guardian to take certain actions without having to seek court approval.
-         Give someone the power to determine how to distribute money or items after your death.
-         Provide care for pets.
-         Give instructions for continuation of your business.
-         Specify who will receive a gift if the primary beneficiary is deceased.
-         Provide information about family heirlooms.

And more.  So, you see that a Will can involve a lot more than just saying who gets what.
In Pennsylvania a Will has to be in writing and be signed by the testator (the person whose Will it is) at the end thereof. See: 20 PA.C.S.A. §2502.  For historical reasons a Will is often referred to as a Last Will and Testament.  The term Will applied to dispositions of real property (e.g. the castle) and Testaments applied to the disposition of personal property (e.g. your sword). But the terms have now become inter-changeable.
Some documents that are called “Wills” are not.  For example, some people create so-called “Ethical Wills” to provide a statement of their values. But that is not a legal document. The poorly-named “Living Will” is a statement of a person’s desires for end-of-life care and has nothing to do with a Last Will and Testament.   
There are some post-death instructions that you should probably put somewhere other than in your Will. These include funeral and burial instructions because your Will may not be read until those tasks are complete. The same goes for anatomical gifts of body parts. And it is probably best not to defame someone in your Will. You may just expose your estate to liability.
Having a well drafted Will is not going to help you directly. You are going to be dead when its instructions become operative, but it can help your family immensely. You are doing a great kindness for your family and other heirs.   It can be a great loving gift to them. It can protect them, save them time and money, help them avoid destructive disputes, and be a way you can continue to care for them after you are gone.
A poorly drafted Will can create all sorts of problems.  See our earlier article: Don’t Try This at Home: Do-It-Yourself Wills are Dangerous for more on this topic.  Unless you are a lawyer with experience in estate planning and Will drafting, you should not do your own Will.
It is often said that your Will governs the ultimate distribution of the things you own after your death. But, if you are like many people, you own assets that are not initially controlled by the terms of your Will. These assets may include things you own jointly with other people and assets like life insurance, retirement plans, and annuities that have beneficiary designations. Your Will needs to be coordinated with these non-testamentary assets so that your overall estate plan meets your desires. Your elder law and estate planning lawyer can help you fit the pieces of the puzzle together.   

Thursday, January 17, 2019

Being Mortal - A Book Review

One major benefit of being semi-retired is that I have more time to “read” audio books each day while I walk and exercise.  This is given me the opportunity to catch up on books I have long wanted to read (e.g. Steinbeck’s East of Eden) as well as more current titles.
I recently read a book that I’d like to recommend to other elder law attorneys as well as Physicians and anyone who is interested in aging and mortality.  The book is
In this book Dr. Gawande explores the attitude of physicians and patients toward aging and death. If this sounds like a dreary reading experience, it is not. Dr. Gawande is a storyteller. His narrative of his experiences and the evolution of his views on what is important at the end of life is illustrated by stories drawn from the lives of his patients and his own family. Their stories turn this serious discussion into a compelling read.
The book recounts the development of Dr. Gawande’s attitude toward medical interventions at the end of life. He begins as a young surgeon who follows an informational approach to advising his patients about end of life treatment options. He would give them all the medical information he could, including discussion of aggressive treatment options that had virtually no realistic potential for success.  He would then ask the patient to choose. Without further guidance patients tend to choose to keep fighting for a chance at a cure (10 more years) through aggressive but futile treatment rather than choosing to accept the reality of mortality. Over time Dr. Gawande came to realize that his unguided informational approach overwhelmed his patients and led to the infliction of treatments that increased suffering and loss while having virtually no hope of improving or extending the patient’s life.
Through his experiences with his patients and family members, Dr. Gawande evolved to a more realistic and compassionate approach to counseling and treating patients with terminal conditions. He now focuses on listening to his patients to try to appreciate their priorities and figure out how medicine can help them attain their goals.
In his view, society and medicine do not have a good track record at helping people through the end of their lives. Dr Gawande overviews the history of the way our society has treated our frail elderly and dying – from the poor houses of a century past to more recent institutional oriented care in hospitals and nursing homes that he feels are too focused on patient safety rather than a meaningful existence. He tells the stories of pioneers who have sought to change the model in nursing home care (the Eden Alternative), assisted living, palliative care and hospice.  
These innovators asked a fundamental question: How do we give meaning to the last round of life for our   dying and their families. Dr. Gawande suggest that our emphasis on a medical-curative approach often robs our frail and dying of the opportunity to find meaning in their remaining days.   
 According to Gawande the Medical profession often makes the mistake of fighting for a longer life rather than for a better life – a life that has meaning and richness for the terminally ill. An overly medical approach can impoverish the end of life and cause useless suffering. It can even shorten the patient’s remaining time.
We teach our physicians how to treat their end of life patients by providing drugs and procedures rather than how to care for them. Caring involves listening and observing and determining the patient’s priorities. What makes the patient’s life worth living?  How important is it for the patient to avoid suffering, spend time in valued activities, or attend that daughter’s wedding? Will a potential intervention interfere with the patient’s priorities or lead to avoidable suffering? Our medical orientation is to do everything possible to extend life, not to ask what can we do to help the patient have their best possible day now given the limitations of their aging bodies and the waning of their lives.
Change is coming, but only slowly. It is true that more people are dying in hospice care. But Geriatrics is relatively low paid and lacking in prestige. And political polarization stands in the way of changing our approach to end of life. It was incredibly difficult just to get doctor/patient discussions about end of life authorized by Medicare. It was caught up in an irrational political controversy about “death panels” And in Pennsylvania we have struggled to pass legislation to provide education and training about Physician Orders regarding Life Sustaining Treatment (POLST). We are afraid of death and it shows. But death is part of being mortal.
It is hard to disagree with Gawande’s conclusion that we have over-medicalized and stripped meaning from aging and dying.  As care providers, aging professionals and advocates we need to do a better job of listening to our patients and allowing them to write their own story’s last chapter. Gawande’s Being Mortal provides a strong argument for change