Advance Health Care Directives

As part of an estate planning package, most attorneys prepare advance health care directives or Living Wills along with a Last Will and Testament or Revocable Trust.  An advance directive is a document in which you give directions for your health care at some time in the future when you may be unable to make health care decisions or speak for yourself.

In Tennessee, the two most commonly used advance health care directives are the Living Will and the Advance Care Plan.  Both documents are valid under state law.  The Tennessee Living Will was developed in 1985.  The Tennessee Advance Care Plan was developed in 2004.  The Advance Care Plan can be found on the Tennessee Health Department website at http://health.state.tn.us/AdvanceDirectives/Advance_Care_Plan.pdf. 

There are differences between the two documents. The Living Will addresses the circumstance where the signer, called the “declarant,” is terminally ill, with no hope of recovery, and is unable to speak for themselves.  In the Living Will, the declarant expresses his or her wishes about whether artificially-provided food and fluids (such as a feeding tube and intravenous fluids) can be withheld or withdrawn if the person is in a terminal condition. 

In contrast, the Advance Care Plan gives the declarant a way to state their wishes about a wider range of possible physical conditions and a wider array of possible treatments.  In the Advance Care Plan, the declarant can indicate their wishes regarding cardio-pulmonary resuscitation, maintenance on life support such as ventilators, or treatment for new conditions, as well as the administration of artificially provided food and fluids.  The declarant can indicate if there are other conditions (including being permanently unconscious, permanently confused or permanently dependent in all activities of daily living) that they may find to be unacceptable.

Whether you choose to sign the Living Will or the Advance Care Plan, think it through carefully and once you have signed it, talk to your family and friends , especially those who will be making the health care decisions for you.  Let your doctor know and make a copy of the form for your doctor’s file.  You can always revoke the directive if you change your mind later.

The newspapers are full of stories about family fights over an inheritance.  Grief and loss can bring out the best and the worst in the survivors.  If you want to make sure your family is not torn apart by a fight over your estate, here are a few tips to incorporate into your estate planning:

1. Hire a lawyer who knows estate planning law.  Your neighbor who handles divorces or your cousin who is a corporate lawyer are not good choices.  Hire a lawyer whose practice is devoted to preparing Wills and administering estates.  You may pay a little more than if you have a friend or relative prepare the Will, but it will be well worth it.
2. Be smart in choosing the executor and trustee.  If hostilities may erupt among your children, do not appoint one of those individuals to be in a position of authority over the estate.  Consider hiring a professional corporate fiduciary, a bank or trust company, to serve as executor if you think a family feud may break out after your death.
3. Tell your family what you are planning.  No one likes to be surprised at the terms of a Will. Sit everyone down for a family conference and let them know what you have planned and why. It can defuse a potential fight if you make clear upfront what your wishes are.  This will keep family members from having expectations that will be disappointed and keep them from claiming later that a certain disposition was not what you intended.
4. If you have moved, make sure your Will takes into account the laws and probate system of your state of residence.   Make sure your Will is up to date and not a relic from the past that reflects your life 25 years earlier.

More tips to come in next posting.

Wake–up call

Last week, in the wee hours of Wednesday morning, I rushed my husband to the emergency room with chest pain. It was a heart attack.  He was treated promptly and successfully and is now home recovering. 

In the emergency room, they asked if he had a power of attorney for health care or Living Will. The unsigned forms were in my computer.  I had prepared the documents months ago, but was always too busy with other people’s work to print them out for him to sign. Fortunately, my husband was conscious and able to consent to treatment himself.

The saying “the cobbler’s children have no shoes” comes to mind.  In this case, the estate planning attorney has not been following the advice she gives to others.  Our Wills and POAs are old and out of date.  Preparing new documents for us has just moved to the top of my priority list.

My husband’s medical crisis was like sharp poke in the ribs for me. We never know when those documents will be needed.  Get it done now while you can.  A medical emergency can happen any time.  Be prepared.

    As you may know, under current law, there will be no federal estate tax assessed against the estates of those who die in 2010.  However, the federal estate tax will be reinstated with a $1 million exemption and a 45% tax rate on January 1, 2011.  Many thought that Congress would have acted by now to set a higher exemption for the estate tax for 2010 and beyond, but so far no action has been taken.  If Congress does act this year, whatever changes they enact may be retroactive to January 1^st.

    How does this affect the average person who already has a Will or Trust in place?  It depends.  For those with simple Wills and no tax planning, there will be no problem.  There is more cause for concern if you have documents that include tax planning language that divides estate assets by referring to estate tax credits and exemptions.  Most of these credits and exemptions do not exist for those who die in 2010.  It is unclear what will happen if someone dies in 2010 with this type of language in their Will or trust.  However, it is certain that in some situations, there will be undesirable results.   

    If you have existing wills or trusts with tax planning and you are able to make changes, you should review your existing estate planning documents with your estate planning attorney.  If your documents divide assets into marital trusts and shares, and “family trusts” or “credit shelter trusts,” and these trusts have different beneficiaries, you may need to amend your documents.  Second marriage situations in particular may require review. Elderly persons or others in poor health are more likely to be impacted by the 2010 situation than others and may want to have an estate planning “check-up”.

            Most people will not need to take any corrective action. If you live until 2011 when the estate tax is restored, the 2010 issues go away.  Hovever, it is a good idea to have your estate planning documents reviewed regularly and adjusted for changes in the law, changing family situations, increasing or decreasing asset values, and other changes.   You should consider making an appointment with your estate planning attorney to have your documents reviewed for 2010 issues and for any other changes that have occurred since the documents were prepared.