Category Archives: Will and Testament

Dead people leave billions in their wills. How long do we have to listen to them?

July 1, 2019

If you’re into podcasts (who isn’t?), and you happen to make your living as a trusts and estates attorney, you’re going to love a recent episode of the Future Perfect podcast entitled Dead people leave billions in their wills. How long do we have to listen to them?Here’s an excerpt from the show notes:

We don’t let dead people vote.

We don’t let dead people run for political office.

But we do let dead people donate money that shapes the world, using charitable trusts.

And as we learn on this episode of the Future Perfect podcast, letting zombie donors pull the strings often doesn’t turn out all that well….

Ray Madoff, a professor at Boston College Law School, wrote a whole book about people donating from beyond the grave, called Immortality and the Law: The Rising Power of America’s Dead.

She says the all-powerful zombie donor is a relatively new American phenomenon.

For the first century or so after the American Revolution, the idea that the dead would have much control over the resources of the world seemed very undemocratic. But then came the Gilded Age, and the rise of a class of unprecedentedly rich people. Some of these robber barons were willing to spread their wealth around — in exchange for immortality. And that immortality came in the form of charitable trusts that lasted forever.

In the decades since, perpetual charitable trusts have become the norm.

The problem? Forever is a long time. And when donors write specific instructions in their trusts, they can’t predict the ways the world will change.

Click here for the podcast audio link. Great stuff, highly recommended.

You may have signed a living will, but scary mistakes can happen at the ER

September 7, 2018

By Judith Graham
ELA News

“Don’t resuscitate this patient; he has a living will,” the nurse told the doctor, Monica Williams-Murphy, handing her a document.

Williams-Murphy looked at the sheet bearing the signature of the unconscious 78-year-old man, who had been rushed from a nursing home to the emergency room. “Do everything possible,” it read, with a check approving cardiopulmonary resuscitation.

The nurse’s mistake was based on a misguided belief that living wills automatically include “do not resuscitate” (DNR) orders. Working quickly, Williams-Murphy revived the patient, who had a urinary tract infection and recovered after a few days in the hospital.

Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama.

But health systems and state regulators don’t systematically track mix-ups of this kind, and they receive little attention amid the push to encourage older adults to document their end-of-life preferences, experts acknowledge. As a result, information about the potential for patient harm is scarce.

A new report out of Pennsylvania, which has the nation’s most robust system for monitoring patient-safety events, treats mix-ups involving end-of-life documents as medical errors — a novel approach. It found that in 2016, Pennsylvania health-care facilities reported nearly 100 events relating to patients’ “code status” — their wish to be resuscitated or not, should their hearts stop beating and they stop breathing. In 29 cases, patients were resuscitated against their wishes. In two cases, patients weren’t resuscitated despite making it clear they wanted this to happen.

The rest of the cases were “near misses” — problems caught before they had a chance to cause permanent harm.

Most likely, this is an undercount, said Regina Hoffman, executive director of the Pennsylvania Patient Safety Authority, adding that she was unaware of similar data from any other state.

Asked to describe a near miss, Hoffman, co-author of the report, said: “Perhaps I’m a patient who’s come to the hospital for elective surgery and I have a DNR order in my [medical] chart. After surgery, I develop a serious infection and a resident [physician] finds my DNR order. He assumes this means I’ve declined all kinds of treatment, until a colleague explains that this isn’t the case.”

The problem, Hoffman explained, is that doctors and nurses receive little if any training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms.

Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.

Research by Ferdinando Mirarchi, medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center Hamot in Erie, Pa., suggests that the potential for confusion surrounding end-of-life documents is considerable. In various studies, he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses.

In one study, for instance, he described a 46-year-old woman who is brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she is otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an Internet survey.

Only 43 percent of those doctors said they would intervene to save her life — a troubling figure, Mirarchi said. Because this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.

In another study, Mirarchi described a 70-year-old man with diabetes and cardiac disease who had a POLST form indicating he didn’t want cardiopulmonary resuscitation but agreeing to a limited set of other medical interventions, including defibrillation (shocking his heart with an electrical current). Yet 75 percent of 223 emergency physicians surveyed said they would not have pursued defibrillation if the patient had a cardiac arrest.

One issue here: Physicians assumed that defibrillation is part of cardiopulmonary resuscitation. That’s a mistake: They’re separate interventions. Another issue: Physicians are often unsure what patients really want when one part of a POLST form says “do nothing” (declining CPR) and another part says “do something” (permitting other interventions).

Mirarchi’s work involves hypotheticals, not real-life situations. But it highlights significant practical confusion about end-of-life documents, said Scott Halpern, director of the Palliative and Advanced Illness Research Center at the University of Pennsylvania’s Perelman School of Medicine.

Attention to these problems is important but shouldn’t be overblown, cautioned Arthur Derse, director of the Center for Bioethics and Medical Humanities at the Medical College of Wisconsin. “Are there errors of misunderstanding or miscommunication? Yes. But you’re more likely to have your wishes followed with one of these documents than without one,” he said.

Make sure you have ongoing discussions about your end-of-life preferences with your physician, your surrogate decision-maker, if you have one, and your family, especially when your health status changes, Derse advised. Without these conversations, documents can be difficult to interpret.

Here are some basics about end-of-life documents:

Living wills. A living will expresses your preferences for end-of-life care but is not a binding medical order. Instead, medical staff will interpret it based on the situation at hand, with input from your family and your surrogate decision-maker.  Living wills become activated only when a person is terminally ill and unconscious or in a permanent vegetative state. A terminal illness is one from which a person is not expected to recover, even with treatment — for instance, advanced metastatic cancer.

Bouts of illness that can be treated — such as an exacerbation of heart failure — are “critical,” not “terminal,” illness and should not activate a living will. To be activated, one or two physicians have to certify that your living will should go into effect, depending on the state where you live.

DNRs. Do-not-resuscitate orders are binding medical orders, signed by a physician. A DNR order applies specifically to cardiopulmonary resuscitation (CPR) and directs medical personnel not to administer chest compressions, usually accompanied by mouth-to-mouth resuscitation, if someone stops breathing or their heart stops beating.

The section of a living will specifying that you don’t want CPR is a statement of a preference, not a DNR order.

A DNR order applies only to a person who has gone into cardiac arrest. It does not mean that this person has refused other types of medical assistance, such as mechanical ventilation, defibrillation following CPR, intubation (the insertion of a breathing tube down a patient’s throat), medical tests or intravenous antibiotics, among other measures.

Even so, DNR orders are often wrongly equated with “do not treat” at all, according to a 2011 review in the Journal of General Internal Medicine.

POLST forms. A POLST form is a set of medical orders for a seriously ill or frail patient who may die within a year, signed by a physician, physician assistant or nurse practitioner.

These forms, which vary by state, are meant to be prepared after a detailed conversation about a patient’s prognosis, goals and values, and the potential benefits and harms of various treatment options. Problems have emerged with the increased use of POLSTs. Some nursing homes are asking all patients to sign POLST forms, even those admitted for short-term rehabilitation or whose life expectancy exceeds a year, according to a recent article by Charlie Sabatino, director of the American Bar Association Commission on Law and Aging. Also, medical providers’ conversations with patients can be cursory, not comprehensive, and forms often aren’t updated, as recommended, when a patient’s medical condition changes.

“The POLST form is still relatively new, and there’s education that needs to be done,” said Amy Vandenbroucke, executive director of the National POLST Paradigm, an organization that promotes use of the forms. In a policy statement issued last year and updated in April, it stated that completion of POLST forms should always be voluntary, made with a patient’s or surrogate decision-maker’s knowledge and consent, and offered only to people whose physician would not be surprised if they die within a year.

This column is produced by Kaiser Health News, an editorially independent news service and a program of the Kaiser Family Foundation.

Tailoring a Will and Power of Attorney for Multiple States

May 31, 2018

If you own property — whether houses, bank accounts, or vehicles — in more than one state, do you need estate planning documents for each state? The answer is probably no, but you need to do some planning if you want to avoid going through probate in each of the states.

A lawyer can generally draft a will that is generic enough to be probated in any state except Louisiana, which has very specific rules. However, real property in another state is subject to probate in that state even if you don’t live there. If you aren’t careful, your estate may have to go through probate in every state you have property in.

To avoid multiple probate actions, you may want to use probate avoidance techniques for the property that is out of state. If your estate is under the estate tax limit and you don’t have family complications, you may hold your property jointly with your spouse. Joint property will pass to your spouse without going through probate. If holding property jointly won’t work, you can put your property into a revocable trust. Property in a revocable trust will pass to whoever is named in the trust. It does not come under the jurisdiction of the probate court and its distribution won’t be held up by the probate process.

A power of attorney — which allows a person you appoint to act in your place for financial purposes if you ever become incapacitated — is an important estate planning document for anyone, including individuals with property in multiple states. One power of attorney should work in multiple states as long as it is written generally enough, but states may have different rules for what makes a valid power of attorney. State laws usually recognize a valid power of attorney created in another state, but you should check with an attorney in the state to make sure it will be recognized. Even if the power of attorney complies with state law, a bank may not accept it. You should let the bank know about your power of attorney and make sure there are no specific forms that the bank requires.

Contact your attorney to make sure your estate planning documents will work in multiple states.

This Holiday Season, Find Time to Talk About End-of-Life Wishes

December 22, 2017

Source: Naela News

The roast turkey and pecan pie may be the same as always, but growing numbers of families plan to add a tradition to their Thanksgiving holiday this week: a frank talk about their wishes for end-of-life care.

Paul Malley, president of Aging with Dignity, the agency behind Five Wishes, a popular living will, says requests for the documents that guide decisions surrounding serious illness and death typically surge starting now. Continue reading

How to Evaluate a Case of Undue Influence

June 23, 2017

– By Andrew G. Sykes, CELA

Most elder law attorneys get the occasional call from a potential client inquiring about whether or not to contest a will due to undue influence. How do you know what advice to give?

While I currently devote most of my practice to elder law, I have litigated many cases in my 25 years of practice. Before adopting elder law, I spent 10 years doing almost nothing but litigation, mostly for plaintiffs. Continue reading

The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust

November 23, 2016

Angela M. Vallario

University of Baltimore – School of Law
October 24, 2016

Capital University Law Review, Forthcoming
Abstract:

A revocable trust is a popular estate planning tool used to disinherit a spouse in fifteen jurisdictions. In common law jurisdictions a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent’s estate regardless of the decedent’s estate plan. However, fifteen jurisdictions have defined a dissatisfied spouse’s rights with a fractional share of the deceased spouse’s “net probate estate,” allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have recently codified trust law making it seamless for the decedent’s creditor to be paid from revocable trust assets. Continue reading

‘Will’ They or Won’t They: What Wills Will and Will Not Control

November 15, 2013

When you die, which assets will be controlled by your Last Will & Testament? This is one of the basic questions in the estate planning world. It may seem strange, but it’s entirely possible for a large proportion of an individual’s estate to pass to people not named in his or her Will.

To understand why, one must distinguish between probate and non-probate assets. An individual’s probate assets pass under the terms of his or her will. However, certain categories of assets are considered “non-probate.” These assets do not necessarily pass to individuals named in a decedent’s Will; instead, they pass according to the terms of separate agreements or deeds, or pass automatically to individuals designated by law.

Examples of non-probate assets include:

1. Jointly-titled property: Personal property, including bank accounts, as well as real property (land and houses or buildings on the land), can be owned jointly. If the joint owners hold a “right of survivorship” (or, in the case of married couples, own the property as “tenants by the entireties”), then when one owner dies, the survivor automatically becomes the sole owner.

2. Life insurance proceeds and accounts for which the owner designates a beneficiary: Proceeds from a life insurance policy that designates an individual as beneficiary will pass to that individual upon the insured’s death, and will not pass according to the insured’s Will. Similarly, Maryland law allows owners of certain types of accounts (such as P.O.D. bank accounts) to designate a beneficiary–a person entitled to receive the funds in the account once the owner dies. Regardless of what the account owner’s Will says, the proceeds from these accounts will pass to the designated beneficiary.

3. Real property held in a life estate: Through a life estate deed, the owner of real property can transfer the “remainder interest”–the right to own the property after the current owner dies–to another party. The current owner–the “life tenant”–retains control over the property during his natural life. When he dies, full ownership of the property passes to the holder of the remainder interest.

This is not intended to be an exhaustive list–rather, these are just a few examples of how property can pass to individuals other than those named in its owner’s Will. In estate planning, it is critical to review all of an individual’s assets to determine whether they will pass under the terms of one’s Last Will & Testament or by some other means.

Frank, Frank & Scherr LLC focuses its practice on elder law, special needs trust planning, estate planning and estate administration,asset management, long term care, health care decisions, special needs trust, in Baltimore County, Baltimore City, Lutherville, Salisbury, Columbia, Howard , Anne Arundel, Harford, Prince George’s County, Montgomery County, MD. Keep up with us on Facebook, Twitter, Google+, and LinkedIn.

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