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Estate planning prepares for the future and provides security for your loved ones.
Estate planning documents are more than just legal paperwork. They express how you wish to care for your loved ones. In crafting your estate plan, you decide who will care for your children in the event of your death. You determine whom to trust with medical decisions if you become sick. You arrange for your loved ones to receive most or all of your assets on your passing, in an estate plan crafted to minimize taxes and legal fees. Whether your assets are valued at less than $10,000 or over $4,000,000, our law firm can tailor an estate plan to meet your distinct needs. Our firm has the experience, integrity, and understanding to guide you through the process. Call us for a free half-hour initial estate planning consultation. Estate Planning Tips From Our Office: When public benefits meet estate planning. We've decided to share a resource with the public that we created some time ago for internal use. It's our links page for Web sites at the complex intersection of estate planning law, seniors' rights, and public benefits. For convenience it includes some general-purpose starting points for free legal research as well. This past year we sent out a link to the page in one of our private client newsletters, but until now we haven't provided access to it for the general public. One reason we've hesitated is, a page with links to so many different kinds of Web sites is subject to a lot of your-mileage-may-vary types of warnings. Here they are: The links on our resource page go to all kinds of sites for all kinds of entities, including government agencies, law libraries, and activist organizations. For your protection, always do your own independent checking and critical thinking about whether to trust any law-related Web site, even if reached it by clicking something on our page. Further warnings: This Web site and the material on our links page is not legal advice. Material on either this page or the links page is no substitute for legal assistance tailored to your particular circumstances. The links are NOT meant to provide a comprehensive review of any legal subject, we're not responsible for the information or suggestions you might find at any of these links, and just because a site is intended for legal self-help doesn't mean that trying to be your own lawyer is a good idea. It often isn't. Having said and heartily meant all that, we hope the site is helpful. Here's the link. Understand POLSTs before you sign one. People agree to things too easily in pressured settings. During the front-desk formalities at an emergency room, for example, it can almost seem foolish to insist on reading and understanding every paper before signing it. This is a major reason why estate planners urge people to prepare advance written instructions for medical care in case of emergency or incapacity. An important function of an Advance Health Care Directive is to protect its creator from having to make important, potentially life-ending decisions in unfamiliar, authoritative settings. However, some concern now exists that, if a real crisis hits a patient, a typical Advance Health Care Directive may not be clear enough. For example, paramedics arriving at a house might not understand whether to start CPR, or a junior nurse in a hospital might not know whether to give antibiotics or place an IV line. To answer this concern, the California legislature has developed simpler, clearer, grimmer documents known as "Requests Regarding Resuscitative Measures." The oldest document of this type is the simple “Do Not Resuscitate” or DNR order. As of January 2009 the Legislature added the POLST, or “Physician Orders for Life-Sustaining Treatment”. It is now addressed in the California Probate Code provisions beginning with Section 4780. POLSTs and DNRs can be helpful in enforcing a seriously ill patient's wishes, especially for someone who wants to die at home without the physical violence of CPR or the bureaucracy and disruption of an ambulance to the hospital. However, they should be approached with care, particularly during admissions to hospitals or nursing homes. In such contexts, people could literally sign away their lives without knowing it. Between the two kinds of resuscitation forms, a DNR form seems less likely to be signed by accident: it's a simple form, and the words "Do Not Resuscitate" are clear. A POLST, on the other hand, is at a scary middle level of complexity: it’s detailed enough to confuse a patient about its possible meaning, yet so clear in its instructions to a trained medical technician that it might be obeyed without even beneficial kinds of second-guessing. So it's especially scary to think that a POLST might be included in a mind-numbing stack of paperwork to be signed in a situation like a nursing home admission, where patients may feel afraid or socially awkward about asserting their real wishes, or without sufficient information or discussion about the amount of authority that a POLST carries. It is a good idea for some people to sign a POLST, but here are things to know about POLSTs before agreeing to them:
In other words, the basic rules apply: read everything before deciding whether to sign it, and don’t sign if you feel pressured, ill, or uncertain. A POLST may be helpful at some time in your life, but if you choose to fill out and sign one with your doctor, you should take time to understand the form fully and make sure the decisions it expresses are entirely yours. You don't have to fear advance care directives. This summer's health care debate took a surreal turn when conservative speakers, using phrases like "death panels," projected their fears of totalitarian government onto a group of ordinary medical documents that include living wills and California's more detailed Advance Health Care Directive. The main (if not only) occasion for their fury was a proposal to create a small Medicare fund that would have paid doctors for the time they spent helping patients to prepare "living wills." The idea was to help people, if they wished, to record their own highly individual decisions in advance about what type of care they wished to receive, or not receive, if they became terminally ill. Nobody was going to force people into these consultations. But somehow, in this summer's debate, a program that would have helped people assume more control over their own treatment became portrayed as its own opposite -- as a pressure campaign to save money by urging patients to accept a speedy death. The proposal has been dropped from the Medicare bill, and the national political focus has moved on, but some damage may have been done to the reputation of an essentially benign type of document. Living wills have existed for many years as ordinary, conventional tools in medical and estate planning. A living will is a useful, safe document so long as it is created by voluntarily and correctly filling out a form document that was drafted with the patient's interests in mind. (Note: the Physician Order for Life-Sustaining Treatment (POLST), a new type of form allowing doctors to withhold specific types of treatment, is worth approaching with caution. We’ll discuss POLSTs in a later article.) Documents such as the California Medical Association's detailed Advance Health Care Directive can relieve family members and medical providers from the uncertainty of guessing when a person who is near death would have wanted to be kept alive. An important purpose of a health directive is to prevent hospital administrators and insurance bureaucrats – or intrusive relatives – from “playing God” with the lives of patients. Documents of this type got more attention nationwide following the drawn-out and highly publicized death of comatose Florida patient Terri Schiavo. Many people decided that beyond a certain point of incapacity, they would not want to be the subjects of dramatic or cumbersome medical interventions. More detail on the actual proposals underlying last summer’s controversy is available in this Washington Post discussion transcript. The discussion clarifies that Sarah Palin, who introduced the notorious "death panels" phrase, may in part have been thinking about a separate group of proposals to review the costs of publicly funded treatment. These other proposals included a call for an advisory board on limiting Medicare costs. Certainly medical cost-cutting pressures raise important moral concerns, whether they're imposed by public agencies or by private insurance companies, but those concerns exist for all patients, whether or not they write living wills. As part of our office’s estate planning services, we help clients to fill out Advance Health Care Directives using the version provided by the California Medical Association. Copies of the CMA form in English or Spanish can be ordered directly from CMA at www.cmanet.org or at 1-800-882-1262. CMA provides an online sample of the document, including its detailed explanatory section. Q&A: California end-of-life instruction documents.
Documents that explain people’s end-of-life wishes have been much in the news, yet little explained. Following is some basic information about end-of-life decision making. What are the kinds of end-of-life instruction documents? A Living Will can express your preferences regarding each of the methods of artificial life support, or you can use this document to reject all artificial life support if you wish to die a natural death. (California law now prefers Advance Health Care Directives for this purpose.) A Durable Power of Attorney for Health Care allows you to name an “agent” to make health care decisions for you in case you are unable to make your own decisions. You can choose a backup agent to act if your first choice is unavailable. An Advance Health Care Directive, in the popular form provided by the California Medical Association, allows you to express your wishes regarding life support and other issues. A Physician Order for Life-Sustaining Treatment (POLST) is a new type of form allowing doctors to withhold specific types of treatment, especially for people who are seriously or terminally ill. We suggest that patients exercise caution in considering whether to sign a POLST. What is the most widely used health care instruction form in California? The California Medical Association (CMA) publishes an Advance Health Care Directive Kit that allows you to: 1) Create a Durable Power of Attorney for Health Care 2) Choose among prepared statements, or write your own statement, regarding which life support methods (if any) shall be used in your care, for how long; and 3) State whether you wish to be an organ or tissue donor. The CMA Advance Health Care Directive Kit includes instructions and explanations. The forms are $6.00 for members of the public. You can order one at www.cmanet.org, or by calling 1-800-882-1262. What are other sources of information about end-of-life decisions? The California Medical Association Web site, at www.cmanet.org, provides information about Advance Health Care Directives. A nonprofit organization called H.E.L.P. provides a detailed Web site at www.help4srs.org with suggestions and questions to help seniors with end of life decisions and funeral planning. Should I Redo My Existing Advance Health Care Directive or Durable Power of Attorney for Health Care? If your form was executed before 1992, then you should have another one executed. Durable Powers of Attorney for Health Care executed before 1992 expire seven years after the date of execution. If you executed a CMA Durable Power of Attorney for Health Care before 2000, be aware that any statement you made about life support will not be considered a mandatory statement. The current CMA forms contain health care directions that your agent(s) must follow if instructed to do so. By contrast, the pre-2000 CMA forms contain life support statements that are merely discretionary guidelines for the agent. You may also want to check whether your current health care directive or estate planning papers include an information release under the Health Insurance Portability and Accountability Act (HIPAA) that allows your agent(s) to receive information from your doctors about your medical condition and mental capacity. Do I Need a Lawyer to Help Prepare my Advance Health Care Directive? The CMA’s forms are designed to be used without the assistance of a lawyer. A detailed explanation comes with the Advance Health Care Directive Kit. A lawyer may be able to help you write a more detailed statement in your Directive, to make sure your wishes are stated clearly, to check to see that the form is correctly completed, signed and witnessed, or to explain about privacy laws. Estate tax changes affect couples with modest assets who have older trusts. Recent increases in federal estate tax exemption amounts have changed the best practices in trust drafting for married couples who have assets well below the current limits. Many older existing trusts were drafted with lower exemption amounts in mind. If both spouses are still living, such trusts should be restated to reduce potential burdens on the surviving spouse after the first spouse passes away. As you may know, the federal estate tax exemption amount is the maximum value of total assets a person may own at death before inheritance taxes apply (that is, assuming the person made no large gifts during life). As of 2009, the exemption amount increased to $3.5 million. Current law calls for the exemption amount to become unlimited in 2010 and then fall back to $1 million as of 2011. However, legislation before Congress may stabilize the amount at $3.5 million. Before the early 2000's, typical 'bypass' or 'A-B' trusts used to provide that, upon the first spouse's death, assets were required to be divided into separately taxable sub-trusts. The intention then was to keep each sub-trust below the federal estate tax threshold, which for many years was as low as $600,000. If a trust that still provides for these mandatory divisions is allowed to take effect following the death of a spouse, it can impose unnecessary burdens on the surviving spouse with no corresponding advantages under current tax laws. With the recent changes in tax laws, older trusts should be re-examined and possibly redrafted. For more details, see our "Trusts for Married People" discussion. |
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