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Estate Planning & Elder Law Blog

By proadAccountId-398673 02 Nov, 2017

Although not technically or legally part of estate planning, which mainly concerns your health care, finances, and the disposition of your property, this is also a good time to start planning your final arrangements, if you have not already done so. Although some clients tell me that they don't want a funeral, or even an obituary, remember that funerals are not for the dead; they are for the living - your family and relatives, plus your friends, neighbors, and colleagues - all of whom want and need closure.

 

IMPORTANT - As with your Advance Directive for Health Care (Living Will), which deals with your End-of-Life medical care and treatment, before prescribing a definite kind or type of funeral for yourself, it is always wise to consult with your family members who will be most affected by your death. Permitting them to be active participants in your funeral planning could serve as a healthy outlet for their grief and anxiety, and will definitely help prevent conflicts between family members after your death.

 

Like putting your personal affairs in order with comprehensive estate planning, pre-planning your funeral is also a gift to your family for which they will be very grateful. The grief and anxiety experienced by your spouse, children, and surviving relatives only becomes more difficult and more stressful when they are also forced to make all the numerous decisions required to plan a funeral on short notice. Grief and guilt often work together with short deadlines to make bad decisions.

 

Funeral planning can be as simple as pre-paying for direct cremation (with no visitation, embalming, or casket) and leaving instructions to scatter your cremains, or buying a cemetery lot and grave marker and selecting basic funeral arrangements, to leaving very detailed instructions for every part of your funeral service, including the music, readings, eulogy, pallbearers, etc.

 

THE MICHIGAN DESIGNATION OF FUNERAL REPRESENTATIVE

 

Starting just last year (2016), as part of your comprehensive estate plan you have designated and appointed a Funeral Representative, who has the sole legal authority over your funeral arrangements and the disposition of your remains. This form is especially important for clients who are in a second marriage and have children from a prior marriage, but it can be helpful in any situation where there is some conflict among family members over what "Dad" or "Mom" would have wanted, or would not have wanted.

 

PRE-PLANNING FUNERAL STEPS

 

  1. Selection of the Funeral Home

 

The first step in funeral planning is the selection of the funeral home that will pick up your body, order Death Certificates, publish your obituary, arrange and facilitate your funeral or memorial service, and manage all the other details of your funeral. Some factors that may influence your decision are personal recommendations, past experiences, reputation, location, etc. Generally, funeral directors welcome visits and questions and will make additional suggestions. Just call and make an appointment.

 

  1. Gathering Information

 

The second step ( your "homework assignment" ) is to collect and assemble all the information, including photographs, military records, etc., that is necessary or desirable for your Death Certificate, Obituary, Funeral, or Celebration of Life service, and for applying for government benefits, such as, Social Security and Veterans Benefits. In some situations only you know all the information that is required. Most funeral homes have forms for you to fill out with this information, but I also provide forms to all my clients as part of their comprehensive estate planning portfolio.

 

  1. List of People and Organizations to be Notified

 

Step three is making a List of People and Organizations you want to be notified in the event of your Death ( your second "homework assignment" ).

 

  1. Basic and Advanced Funeral Planning Decisions

 

The fourth and final step is making all the basic and more advanced funeral planning decisions, such as, burial vs. cremation, funeral vs. memorial services, embalming, visitation, viewing, music, readings, poetry, the eulogy, tombstone, and as many other specific details for your funeral or memorial service as you desire ( your final "homework assignment" ). Remember, if you don't do this, someone else has to.

 

DEFINITIONS OF COMMON FUNERAL PLANNING TERMS

 

Funeral Service.     Means a service held to memorialize a deceased person prior to burial with their the body present. Typically, but not necessarily religious.

 

Memorial Service.   Means a service held to memorialize a deceased person prior to burial without the body present. Typically, but not necessarily religious. Cremains may or may not be present.

 

Celebration of Life.         Means a service held to memorialize a deceased person after their burial or cremation, in lieu of a funeral or memorial service ( this seems to be becoming more common ). Cremains may or may not be present. Typically, a Celebration of Life is more concerned with telling the story of the deceased than a religious service, but not necessarily. Since it is commonly held after the individual's physical remains have been cared for, there is much more time available to plan the event. In fact, it may be held months after the deceased's death. For example, if the deceased died in the winter, the Celebration of Life service might not be held until Spring. Another example would be when the deceased has children, siblings, or other relatives who live out of state, and a delayed Celebration of Life service provides time to contact all the relatives and arrange for a date that is agreeable for all involved.

 

Wake.           A funeral tradition, common in Ireland and among Irish immigrants, which mixes mourning with a celebration of life. Typically the participants stay awake all night keeping watch over the body of the dead person, while feasting and drinking and telling stories about the deceased, usually followed by a somber traditional funeral service.

 

Visitation.     Means the time that the family and friends come to see the deceased after they have been prepared by a funeral home, and give their condolences to the family of the deceased. Visitation may be with or without the body present and with or without the cremains present. Visitation may be brief and take place immediately before the funeral service, or may last for up to three days before the service.

 

Living Funeral ( also called a Living Celebration of Life ) .       A Living Funeral combines a Celebration of Life with Visitation to memorialize a living person prior to their imminent death. Although not yet very common, it is intended to be held after a person has been diagnosed with a terminal illness or condition, but before their death. The advantage is that the person who is the subject of the service is alive and present to talk to and interact with the participants. Characteristically not religious. The disadvantage is that the person who is the subject of the celebration must be willing to accept the fact that they are dying, and publicly admit that fact, before they are too sick or too weak to participate. Not everyone can or wants to do this.

 

Pre-Planned.         Means that an individual has made advance arrangements with a funeral home for their funeral or memorial service and the disposal of their remains. Pre-planned does not mean pre-paid or pre-financed.

 

Pre-Paid.       Means either a guaranteed or non-guaranteed funeral contract ( also called a "pre-need contract." )

 

(a)     A guaranteed contract is paid in full in advance, and guarantees that the cost of the funeral will not go up in cost, no matter how many years later you die. A guaranteed contract can be revocable or irrevocable.  Revocable means you may cancel the contract and get most of your money back. An Irrevocable contract cannot be cancelled.

 

(b)     A non-guaranteed contract is attractive to those who cannot afford to pay everything up front, and prefer to make periodic payments. Once the non-guaranteed contract is paid off, the contract becomes a guaranteed contract.

 

Pre-Financed.         Means that you have made arrangements for specific funds to be available to pay for your funeral. This can be done in various ways, for example, a bank savings account with a pay-on-death provision naming a relative or the funeral home as beneficiary. Another way is to purchase a small insurance policy naming a relative or the funeral home as beneficiary.

 

CONCLUSION

 

While I firmly believe that everyone should contact a local funeral home and pre-plan their funeral, you will have to make your own decision whether to pre-pay or pre-finance your funeral based on your own particular circumstances and future plans.

 

The main advantage of pre-paying is that the funeral home guarantees that the cost of your funeral will not increase over time, even if you live for many years after buying the contract. Further, it guarantees you will get the funeral service you want and your relatives won't be running around trying to figure out where the money is to pay for it. In addition, an irrevocable pre-paid funeral plan is a "non-countable" asset for Medicaid planning purposes should you someday need Medicaid.

 

Posted : November 1, 2017

 

For More Information: If you would like more information about Funeral Planning, Estate Planning, Probate, or Elder Law, please contact attorney Robert Teeter at 231-250-6057 or at bob@teeterlaw.com.

 

Disclaimer: The information contained herein was prepared for general informational and educational purposes only, and should not be construed as legal advice. While every effort has been made to assure the accuracy and timeliness of the information, neither the author nor his law firm, Teeter Law PLC, assume any responsibility for any individual's action or inaction in reliance on this information.

 

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By proadAccountId-398673 03 Oct, 2017

Important Terms

 

Probate - Is the legal process, supervised by the Probate Court, to administer the estate of a deceased person. Back in the day, before the advent of the Revocable Living Trust, when estate planning only consisted of having a Will and a Power of Attorney, most people's estates had to go through the "Probate Process" ( see The Probate Process, below ). Today, there are many tools available to avoid Probate, and, therefore, Probate of a decedent's estate is much less common.

 

Probate Court Jurisdiction - The Probate Court has EXCLUSIVE JURISDICTION over Decedent's Estates, Trusts, Guardianships, Conservatorships, Protected Individuals Proceedings, Fiduciary Accountings, and matters under the Mental Health Code ( commitments ). In addition, in rural and smaller urban counties, the Probate Court may have CONCURRENT JURISDICTION with the Circuit Court over Family Law matters (divorce, child custody, support, etc.) and Juvenile Law matters (Child Protective Services, juvenile delinquency, etc.).

 

Gross Estate - Is the total value of all the decedent's property at the time of their death, including all real and personal property, vehicles and watercraft, life insurance, retirement, brokerage, and other savings and investments. Federal and State inheritance taxes are based on the Gross Estate.

 

Probate Estate - Is only that portion of a decedent's property that passes through the Probate Process.

 

Non-Probate Estate - Is that portion of the decedent's estate that passes directly to the decedent's heirs and beneficiaries outside of the Probate Process ( see How Do I Avoid Probate, below ).

 

Will (Last Will and Testament) - Is simply a person's written instructions to the Probate Court on how to distribute their property after they are dead, and after all expenses, debts, and taxes have been paid, and asking the court to appoint a person to administer their estate through the Probate Process (formerly called an Executor, now called the Personal Representative, or "PR"). A Will is only effective and legally binding after it has been admitted to Probate by an Order of the Probate Court.

 

The Probate Process

 

The ordinary Probate Process for a decedent can be broken down into four (4) major steps:

 

  • Opening a Probate (filing a Petition to admit the Decedent's Last Will to Probate, Appoint a Personal Representative ("PR"), Issue Letters of Authority to the PR, and give Notice to Creditors and other "Interested Persons");

 

  • Making an Inventory (finding, identifying, and protecting all the decedent's assets, ascertaining their value, making an Inventory, filing the Inventory, and paying the Inventory Fee);

 

  • Paying Creditors (identifying and paying final medical expenses, funeral expenses, just debts, income and estate taxes, and general administration expenses, including attorney fees); and

 

  • Closing the Probate and Distributing the Remaining Assets to the Heirs and Beneficiaries (filing a Final Accounting, requesting its approval, and requesting that the probate be closed).

 

NOTE - In Michigan, the Probate Process may be handled in several different ways, depending on the size of the estate, whether the Decedent had a Will or not, and whether the Will provided for supervised or unsupervised administration.

 

  • Simplified (Informal) - for Small Estates less than $22,000;
  •  

Unsupervised (Informal) - Judge is usually not involved and Probate Court Register handles everything; and

 

  • Supervised (Formal) - the Judge is involved at every step of the process, and the Personal Representative must get Court approval before selling or distributing estate assets.

 

Of course, since we are dealing with the Court, those 4 major steps are broken down into multiple sub-steps, each requiring the filing of one or more legal forms, the payment of court fees, and following pre-determined deadlines for getting each step done.

 

NOTE that many of the steps enumerated above will also be necessary in the administration of a Trust, however, they will be without all the required Court forms, Court imposed time limits, and Court fees, and they will be private, not public proceedings.

 

Why Should I Try To Avoid Probate?

 

I. Expenses

 

Court Costs - Are the costs imposed on the Probate Process by the State, and include the initial filing fee to open a Probate ($187.00), plus a motion fee ($20.00) for each motion that is filed. Motions must be filed to request any hearing that has not previously been scheduled by the Court.

 

Inventory Fee - This is a statutory fee that is imposed on the value of the deceased's Probate Estate in Michigan. The Inventory Fee is a percentage based on a sliding scale that varies with the value of the estate. For example, an estate valued at $500,000.00 would pay an Inventory Fee of $862.50. An estate valued at $1,000,000.00 would pay an Inventory Fee of $1,175.00. The minimum fee is $5.00.

 

Attorney Fees - You will probably need an attorney to assist you with the forms and the complexity of the Probate Process. Attorney fees for probate are usually based on an hourly rate versus a flat fee, and will vary considerably, from a few hundred dollars an hour to three, four, or five hundred dollars an hour or more, depending on the attorney or law firm used and the county where the Probate is located. The total attorney fee will depend upon the amount of time (hours and parts of hours) that the attorney must devote to the case, which in turn depends upon the complexity of the case or the assets, the number of hearing required, the number and complexity of the documents that need to be filed, and whether the probate is contested (by an heir or another interested party, such as, a creditor) or uncontested. If the case is complex or contested, it is easy to spend tens of thousands of dollars. On the other hand, if the estate is relatively simple, uncontested, and the Will was well written, the fees could be as low as $1,500.00 to $2,000.00.

 

II. Time and Scheduling

 

You Must Follow The Probate Court's Schedule - Michigan Probate Court rules set specific deadlines and waiting periods for the filing of the various forms and documents as the Process moves forward. In Michigan, it takes a Minimum of 5 months (4 months after Notice to Creditors is published + 1 more month after the Order for Completion is signed before it becomes effective) to complete the Probate Process; but, on average, Michigan probate takes between 7 months and 1 year or more to complete, depending on a wide variety of factors. A contested case could take years to work its way through the Probate and Appeals process.

 

III. Lack of Privacy

 

Probate Records are Public Records - In addition to the time and expense of Probate, Probate proceedings and court files are public records, open to anyone who desires to go to the court house and look at them. This means that spouses and heirs who inherit large sums of money or other valuable property may become targets for con men, distant relatives, and estranged family members.

 

How Do I Avoid Probate?

 

There are four (4) categories of property that automatically avoid Probate. We refer to these as "Non-Probate Assets":

 

1.   Jointly Owned Property with rights of survivorship (e.g., homes owned by husband and wife, or parent and children);

 

2.   Property with a Beneficiary Designation (e.g., life insurance, annuities, IRA's);

 

3.   Property with Transfer-on-Death or Pay-on-Death instructions (e.g., bank accounts, brokerage accounts, certain real estate deeds); and

 

4.   Property held in a Trust . ( See my prior Blog entitled "What is a Trust, and Do I Need One?" )

 

NOTE that the first three listed assets will pass to their joint owners and beneficiaries regardless of what you write in your Will or your Trust. In other words, the named beneficiaries and joint owners take precedence over any directions or wishes stated in your Will or your Trust. Naturally, property held in a Trust, will pass to the beneficiaries named in the Trust.

 

Some other examples of Non-Probate Assets are:

 

  • motor vehicles with a value not in excess of $60,000 and no probate proceedings

 

  • watercraft with a value not in excess of $100,000 and no probate proceedings

 

  • cash up to $500.00, and

 

  • personal property not exceeding $15,000.00.

 

Therefore, if all of your assets are owned or titled in one of the above four Non-Probate Asset categories at your death, your estate will avoid Probate.

 

 

Posted October 2, 2017

 

For More Information: If you would like more information about the Probate Process, Estate Planning, or Elder Law, please contact attorney Robert Teeter at 231-250-6057 or bob@teeterlaw.com.

 

Disclaimer: The information contained herein was prepared for general informational and educational purposes only, and should not be construed as legal advice. While every effort has been made to assure the accuracy and timeliness of the information, neither the author nor his law firm, Teeter Law PLC, assume any responsibility for any individual's action or inaction in reliance on this information.

By proadAccountId-398673 31 Aug, 2017

A Trust is nothing more than a legally binding contract ( called a Trust Agreement ) which creates a fiduciary, contractual relationship between three (3) parties:

·      the creator of the Trust ( known variously as the Trustor, Settlor, Grantor, or Trust Maker ),

·      one or more persons or legal entities ( the Trustee ) who agree to hold the property given to them by the Trustor ( the Trust Property or the Trust Estate ) in trust and administer the Trust in accordance with the terms of the Trust Agreement, until

·      the Trust Property is ultimately distributed to one or more designated parties ( the Beneficiary ).

A Trust is usually signed by the Trustor and the Trustee, but not by the Beneficiary. It is then either witnessed or notarized, or both. Unlike a Will, a Trust is usually not filed, registered, or recorded, and is, therefore, not a public record. In Michigan (and in most other states), a Trust is not a separate legal entity capable of holding title to property, and, therefore, title to property must be held in the name of the Trustee. A huge advantage of a Living Trust over a Will is that a Trust can be used both before your Death, in the event of your incapacity, and after your Death as a "Will Substitute" to distribute your estate to your beneficiaries. The other major benefit of a Trust is that it avoids Probate ( and the time, expenses, attorney fees, and open records associated with Probate ) and preserves the privacy of the Trustor and the Trustor's Beneficiaries.

 

A Trust may be revoked or changed at any time during the Trustor's lifetime by a simple, notarized Amendment. Changes to a Will require a formal amendment ( called a Codicil ) that must be drawn up by an attorney and executed with the same formalities as the original Will. While a simple Will tends to cost less than a Trust at the outset, a Will ends up costing more, sometimes much more, to settle during the Probate court proceedings.

 

Are There Different Types of Trusts?

 

There are many, many different types of Trusts that are used for as many different purposes, such as, reduction or elimination of estate or inheritance a taxes, protection of disabled persons, protection of minors and spendthrifts, protection of assets against creditors, charitable giving, business succession planning, protection against divorce, provisions for second wives or children from a prior marriage, etc., etc. However, by far and away, the most common type of Trust today is the Revocable Living Trust .

 

What is a Revocable Living Trust?

 

It is called a Revocable Trust because during the Trustor's lifetime it can be easily revoked, amended, or changed at any time for any reason. Property can be added to the Trust or taken out of the Trust, and Trustees and Beneficiaries can be changed.  But, when the Trustor dies, the Trust becomes Irrevocable , which means it can no longer be changed.

 

It is called a Living Trust because it is created during your lifetime versus a Testamentary Trust , which is created in a Will and which becomes effective only upon your death.

 

What is Trust Funding?

 

Trust Funding is the process of transferring property from the Trustor to the Trust. This may be accomplished in a variety of ways, such as, Deeds for real property, Transfers for brokerage and bank accounts, Beneficiary Designations for Life Insurance, Annuities, and Qualified Retirement Accounts, and Assignments and Bills of Sale for tangible personal property.

 

Note that a Trust only has control over property that has been placed into the Trust ( re-titled in the name of the Trustee ), therefore, Trust Funding is a very important and necessary step after the Trust has been created. Unfortunately, one of the most common mistakes people make after paying to have an estate plan drawn up is to fail to fund their new Trust.  Property that remains in the individual's name at death becomes part of their probate estate and must go through the Probate process.

 

At the present time, there is a split of opinion among Estate Planning Attorneys whether to fully fund a Trust at the time it is created, or wait and fund it at the death or incapacity of the Trustor, and there are good arguments on both sides. For example, in the case of an elderly couple, it may be a very good idea to fully fund the Trust right away to facilitate its administration by the successor Trustees in the case of incapacity of the Trustors. On the other hand, a Revocable Living Trust does not have to be funded when it is created to be legally effective, and for younger couples, it can, and often is only funded upon the death of the Trustor by means of Transfer-on-Death conveyances, Lady Bird Deeds, Beneficiary Designations, Wills, or other means.

 

If I Have a Trust, Do I Need Anything Else?

 

A Trust is only one part of a complete Estate Planning Portfolio , which, in Michigan, generally consists of:

 

Living Documents : (to be used only during your lifetime in the case of your incapacity)

·      Durable General Power of Attorney (for Finances)

·      Durable Power of Attorney for Health Care and Patient Advocate Designation

·      Advance Directive for Health Care ("Living Will")

·      HIPPA Authorization and Designation of HIPPA Personal Representative

 

Post-Death Documents : (to be used only after your death)

·      Last Will and Testament ("Will") ( just in case you have property that was not placed into the Trust )

·      Designation of Funeral Representative

 

Hybrid Documents : (to be used both during your lifetime and after your death)

·      Designation of Digital Custodian

·      Revocable Living Trust

 

Transfer Documents : (used to convey property to your Trust, either immediately or upon death)

·      Deeds (for real property)

·      Assignments (for personal property)

 

Miscellaneous Documents :

·      Revocation of Trust (for old trusts)

 

Do I Need A Trust?

 

As Dave Ramsey says, "Everyone needs a Will, but not everyone needs a Trust."  I totally agree!!!  The primary reasons to have a Trust are to:

·      Avoid Probate ( and the time, expense, and publicity of Probate )

·      Provide for and protect the surviving spouse who is aged or disabled and may no longer be able to handle their own financial matters

·      Avoid Federal and State Inheritance Taxes

·      Hold assets for a time instead of having them pass outright to your beneficiaries upon your death or upon the age of majority (18) ( particularly in the case of minor children or grandchildren )

·      Provide for second spouses and/or children from a previous marriage

·      Protect beneficiaries who cannot handle their own finances for any variety of reasons, including behavior problems, incarceration, disability, mental or physical illness, or chronic conditions

·      Put conditions on a gift

·      Provide for a beneficiary that is receiving, or is likely to be entitled to receive government assistance, such as, Medicaid, SSI, VA Benefits, etc.

·      Protect a beneficiary who is likely to be divorced

·      Transfer title to real property that is located in another state ( without having to open an ancillary probate in a foreign state )

·      Transfer ownership of a family owned business after your death, etc., etc.

On the other hand, if you are sure that none of the above apply to you, and if your estate is well under one million dollars and simply consists of your home, some IRA's, some life insurance, and some savings and investment accounts, and if you simply desire to leave all your property outright to your spouse and then to your mature, adult children, then you may not need to have a trust. ( Note that there are other techniques that can be used to avoid probate, such as, using Beneficiary Designations [life insurance, annuities, qualified retirement accounts], Transfer-on-Death provisions [bank and brokerage accounts], and Lady Bird Deeds [real estate] ).

Also note that:

·      In Michigan, titles to vehicles (under $60,000) and watercraft (under $100,000) can generally be easily transferred to heirs after the death of the owner without probate.

·      Even though your estate is modest and Federal Estate Taxes are not an issue, it is almost ALWAYS less expensive to create a complete Estate Planning Portfolio with a qualified estate planning attorney than go through the Probate process.

 

·      A spouse or a parent of an adult child is NOT automatically authorized to make financial or medical decisions on behalf of their spouse or child unless a Power of Attorney for Health Care, a Power of Attorney for Finances, and/or a Trust has been executed naming their spouses or parents as their legal agents and representatives. ( In this regard, remember the 1990-2005 case of Terri Schiavo in Florida, where Terri was in an irreversible coma and the husband’s wishes to remove her from Life-Sustaining Treatment were thwarted for 7 years by her parents, which led to multiple court hearings, federal government intervention, and 14 appeals, including 4 appeals to the U.S. Supreme Court .)

 

Posted September 1, 2017

 

For More Information: If you would like more information about Trusts, Estate Planning, Probate, or Elder Law, please contact attorney Robert Teeter at bob@teeterlaw.com or 231-250-6057.

 

Disclaimer: The information contained herein was prepared for general informational and educational purposes only, and should not be construed as legal advice. While every effort has been made to assure the accuracy and timeliness of the information, neither the author nor his law firm, Teeter Law PLC, assume any responsibility for any individual's action or inaction in reliance on this information.

 

By proadAccountId-398673 01 Aug, 2017

End of Life Planning ("EOL Planning") is planning that is intended to ensure that your personal wishes and directions for your EOL care and treatment, including your wishes for a Hastened Natural Death ( see below ), if you so desire, are carried out, even if you can no longer communicate your wishes yourself.

 It seems that when a person is diagnosed with a terminal disease, such as cancer, the most common reaction is to buy into what the doctors are selling - "We are going to fight this with everything we have - surgery, chemo, radiation, drugs, more tests, more surgery, etc.," regardless of whether the treatment is actually intended to cure you, so long as it keeps you alive for some additional period of time, and even if you have no quality of life ( really just "PROLONGED DYING" ). As an example, look at all the obituaries that say the deceased died after a "long and brave battle with cancer" ( or some other disease ). Let's call this EOL Option (1) . This does not have to be your fate. We believe it is important for you to know that there are other EOL Options available to you if you wish to take them.

 EOL Planning is applicable to anyone at any age, but is especially applicable to those persons who are elderly and (a) have been diagnosed with a terminal disease, (b) have been diagnosed with progressive dementia, or (c) have reached "Old Age" and are starting to experience the symptoms of "THE FINAL PHASE OF LIFE" ( Fraility, Decline, Dependence, Dementia, and Active Dying ). As Woody Allen once famously said, "I am not afraid of dying, I just don't want to be there when it happens!" I agree with Woody on this one.

The following Other EOL Options may be controversial, and for personal, moral, or religious reasons will not be acceptable to everyone. However, many people believe that a competent adult should have the right to choose when to end their own life. There are also people, who after living a full life, would prefer to just skip The Final Phase of Life altogether before their health and/or their mind declines to the point where they are totally dependent on others for their care and they have little if any quality of life left. Regardless of the EOL Option you select, you will need the support of your spouse or family members, Patient Advocate, physician, and medical facility. It is therefore essential to discuss your wishes with all the above well in advance of the time their support may be needed.

PRELIMINARY MATTERS

(A) Have an Honest Conversation with Yourself and Your Family . What really matters to you at the end of your life? How important is Quality of Life to you Vs. Years of Life? Under what conditions would you prefer to end your life rather than continue to live? (For example: confined to a nursing home or memory unit? confined to bed? kept alive by artificial means? dementia? constant pain? dependent on others for daily care? unable to communicate? etc., etc.?) Talk about it, decide what you want, write it down, and communicate it to your family.

(B) Get Your Personal Affairs in Order . Have Your Estate Planning Documents Drawn Up or Reviewed and Updated. In addition to a Will and a Trust, everyone should have the following "Living Documents" - a Durable General Power of Attorney for Finances, a Durable Power of Attorney for Health Care, and an Advance Directive for Health Care ( Living Will ) with express, written instructions for your EOL care and treatment. These important documents should be prepared by a qualified Elder Law attorney expressly authorizing your Patient Advocate to refuse medical treatment, stop medical treatment and procedures if they have already been started, approve Do Not Resuscitate (DNR) and Do Not Hospitalize orders, even if such refusal, stoppage, or order will hasten your death.

(C) Have Honest Conversations with Your Doctors . This applies to you, your spouse, and to your Patient Advocate. This is not the time to be shy about asking questions of your doctors, especially if you are elderly, and especially if they are proposing serious surgery or some other invasive test or treatment. Ask whether this will "cure" me, or whether it will only prolong my death, and if so, for how long? What are the risks and the intended benefits of the surgery, treatment, or test? What is the recovery time? What quality of life will I have during and after the treatment? What quality of life issues will I lose as a result? IMPORTANT - Tell your Doctors that you have an Advanced Directive for Health Care (Living Will), and that you want the directions expressed in that document to be followed.

OTHER EOL OPTIONS

Doctor Assisted Death

(2)   Travel to Europe for Euthanasia.   Some countries in Western Europe, especially Switzerland and the Netherlands, have had legalized euthanasia since the 1970's. A physician there will, at your request, inject you with a lethal dose of drugs quietly and peacefully ending your life. And the Netherlands is now considering a proposal that would allow euthanasia for any older person who considers their life complete and wants to die. You don't have to be a resident and you don't have to have a terminal illness, but you do have to be mentally and physically fit enough to travel, to communicate your wishes to the doctor, and have enough money to pay for the trip and the medical services ( currently around $5,000.00 ).

(3)   Move to a State that has a "Death With Dignity" Law . These statutes allow, under certain conditions, physicians to prescribe ( but not administer ) a lethal dose of drugs. Only five states ( California, Colorado, Oregon, Vermont, and Washington ) currently have such laws in effect, and the conditions are very strict: 2 physicians must confirm the patient's residency, diagnosis, prognosis, mental competence, and voluntariness of the request. In addition, there are 2 waiting periods, the first between the 2 oral requests, the second between receiving and filling the prescription. Finally, the patient must administer the drugs to themselves without the aid of a third person ( which in the US would be a crime ).

Hastened Natural Death

(4)   Refuse or Stop Treatment . You have the legal right to refuse any treatment and to stop or withdraw any treatment that has already begun, even if it hastens your death. You also have the legal right to direct your Patient Advocate to make this decision for you if you cannot communicate with your physician. Many people are unaware that stopping treatment can result in a peaceful death. However, stopping medical treatments may also increase discomfort or suffering, therefore, you should consult with your physician and arrange for palliative (comfort) care before stopping treatment. Under some circumstances stopping treatment can be combined with hospice and palliative care and/or voluntary stopping eating and drinking ( see below ) to shorten the dying process and reduce suffering.

(5)   Use Hospice and Palliative (Comfort) Care . Hospice care is a form of palliative care that seeks to optimize the quality of life at the EOL, while neither hindering nor hastening the dying process.  It is an important Medicare benefit for terminally ill patients who may only have months to live.  People who receive hospice care no longer receive curative treatment for their underlying disease.  Hospice is not a place, but rather a form of medical care that enables the probability of a peaceful death for most people.  It is covered by Medicare, Medicaid, the Veterans Administration, and most private health insurers. To qualify for Hospice, a person usually must have only six months or less to live and will be required to decline further curative treatments.  A referral from a doctor, who usually remains your primary care physician during hospice care, is required.

(6)   Voluntarily Stop Eating and Drinking (VSED) . When people die naturally of diseases such as cancer, they often lose their appetites and eventually stop eating altogether. Some people hasten the dying process the same way, by VSED.  If a person stops eating and drinking, death may come as early as a few days, but more commonly one to three weeks.  A person who begins VSED prior to its natural occurrence should expect hunger and thirst for a few days, so it is very important to have reliable access to medication to decrease or eliminate symptoms. When done properly, VSED usually results in a peaceful, humane death, especially when combined with hospice or palliative care.

(7)   Palliative Sedation . Palliative sedation, also referred to as "terminal sedation", is the practice of relieving difficult-to-manage distress for a terminally ill person in the last days and hours of life, usually by means of a sedative drug which renders the patient unconscious. Unlike adequate pain and symptom management, however, palliative sedation is not necessarily a "right." While it can be requested, it is up to the medical provider to determine if it is appropriate. Palliative sedation is usually provided in a hospital or a skilled nursing or inpatient hospice facility. All nutrition and hydration is stopped, and the patient usually dies within a few days. If the option of palliative sedation is important, discuss it with hospice or other medical providers well before it becomes necessary.

And finally,

Self-Inflicted Death

(8)   Suicide . Suicide is the 10th most common cause of death for those over 65. The term, "Rational Suicide," is defined as a reasonable choice by a terminally ill or elderly person considering all the other available options, as opposed to an emotional or psychological reason ( e.g., depression, mental illness, or anger ). Although some might argue that all the Additional EOL Options listed above are various methods of suicide, this is the only one that will go in the record as "suicide." For some people, whose religious beliefs are not in conflict with suicide, and who do not wish to suffer through EOL Option (1) or The Last Phase of Life, this may be an option. But it will be up to you to choose the time and the method, find or procure the necessary materials or drugs, and carry it out without help from others ( which in the US would be a crime ). The biggest problem with suicide as an EOL Option is the timing - if you wait too long, you won't have the strength or mental capacity to do this on your own; but if you do it too soon, you may be leaving quality time on the table - tough decision!

( Posted August 1, 2017 ) Based upon information found in End of Life Washington ( EndofLifeWA.org ).

For More Information: If you would like more information about End of Life Planning, Estate Planning, Probate, or Elder Law, please contact attorney Robert Teeter at 231-250-6057 or bob@teeterlaw.com.

Disclaimer: The information contained herein was prepared for general educational and informational purposes only, and should not be construed as legal advice. While every effort has been made to assure the accuracy and timeliness of the information, neither the author nor the law firm of Teeter Law PLC assume any responsibility for any individual's action or inaction in reliance on this information.


By proadAccountId-398673 07 Jul, 2017
Alzheimer's Disease ("AD") is a terrifying disease. Per Statista.com, for the period 2007-2009, AD was the fifth leading cause of death for those over 65, accounting for about 5% of all deaths (the other leading causes of death in this period were Heart Disease (28%), Cancer (22%), COPD (7%), and Stoke (6%)). But even though AD is not the most dangerous disease, it is the most feared disease. AD is an incurable, degenerative brain disorder that breaks down and destroys brain cells causing a decline in memory, behavior, and mental capabilities. It is the most common cause of dementia in America; it steadily progresses until the mind is essentially destroyed; and death may not occur until years after the mind has gone. While on average, the life expectancy of a Person with Alzheimer's ("PWA") is 8 to 10 years, it can be as short as 3 years or as long as 20 years. The average time between the onset of symptoms and diagnosis is 3 years.

While some minor memory and brain function loss is normal with advanced age, AD is NOT a "normal" part of aging. The cause of AD is still unknown, but suspected risk factors are environmental [exposure to chemicals], genetic predisposition, social isolation, mental inactivity, obesity, high blood pressure, poor diet, drug and alcohol abuse, and physical inactivity (especially in middle age). Although the risk of developing AD dramatically increases after age 70, only about a third of elders aged 85 and older develop the disease. The following table shows the incidence of AD from age 65 to age 90:

    65       4%
    70       5%
    75       15%
    85       33%
    90       37%

But the incidence of AD is increasing. According to the Alzheimer's Association, there are about 5 million people today who are suffering from AD, but by 2050 there may be as many as 16 million, a three-fold increase. This increase in AD is attributed to the rapidly growing population aged 65 and over, and better and earlier AD diagnosis and reporting. Unfortunately, there are few easily identifiable symptoms in the early stages, and, therefore, by the time AD is diagnosed, a PWA may have had AD for 3-5 years or longer.

There are many causes of dementia, including medications, dehydration, chemical imbalances, depression, head injuries, minor strokes, and other illnesses, and many of these causes are treatable and reversible, so it is very important to see a qualified physician and get a professional diagnosis as soon as any serious memory or mental problems are suspected. Remember, dementia is not normal, even in the elderly. In addition, an early diagnosis of AD will permit the use of new drugs that can lessen or stabilize AD symptoms if administered in the early stages.

So, what should you do if you or a loved one is diagnosed with AD?
Answer: Create an ALZHEIMER'S ACTION PLAN!


The normal reaction of most people to a diagnosis of AD is shock, followed by fear and a sense of loss, and then the Five Stages of Grief (denial, anger, bargaining, depression, and acceptance). However normal this is, it accomplishes very little. As soon as the initial shock wears off, the PWA and their family should start to create an Action Plan for the purpose of asserting some degree of control over their future. This is a critical time for the PWA and their family. They have to start preparing and planning now for what will come in the future. The following suggested Action Plan lists recommended steps to be taken. Feel free to add your own additional steps.

(1)     Set Up a Team of Experts.   The purpose of a Team of Experts is to oversee and confer on care giving, treatment, housing, finances, and legal issues as the disease progresses. Your team should include at a minimum the PWA's doctor, an Elder Law attorney, a financial planner, and a geriatric care manager ( see the Aging Life Care Association - www. aginglifecare.org .), plus anyone else you believe should be on the team.

(2)     Consult with an Elder Law Attorney.   Make an appointment with an experienced Elder Law attorney as soon as possible to get the PWA's personal and legal affairs in order while they still have the legal mental capacity to execute legal documents. While AD generally progresses slowly at first, there are no guarantees as to the time before legal capacity is lost, therefore, it is very important to act quickly. If the PWA does not have these documents in place, and does not have legal capacity, the Probate Court will have to appoint a legal Guardian and a Conservator to make health care and treatment decisions for them and manage the PWA's finances. If the PWA already has estate planning documents, they should be carefully reviewed to see if they are up to date and sufficient for PWA's. The Elder Law attorney will draft or update the legal documents to include customized language and clauses specific to the problems and legal issues common to PWA's. These documents will generally include:

Living Documents  (to be used only during lifetime)
  • Durable General Power of Attorney (for finances - to take effect immediately)
  • Durable Power of Attorney for Health Care and Designation of Patient Advocate
  • Advance Directive for Health Care or Living Will (for End-of-Life care and treatment decisions)
  • HIPPA Authorization and Designation of Personal Representative (for release of medical records to your care givers and agents)
Hybrid Documents  (to be used both during life and after death)
  • Revocable Living Trust
  • Designation of Digital Custodian (for online records and accounts),
Death Documents (to be used only after death)
  • Last Will and Testament
  • Designation of Funeral Representative
Transfer Documents
  • Deeds (for real estate)
  • Assignments and Bills of Sale (for personal property)
Medicaid Planning Documents
  • (Depending upon the PWA's personal situation, care requirements, and finances)
(3)     Educate Yourself.   Learn as much as you can about AD so that you will know what to expect and how to actively participate in care and treatment options as the disease progresses. The best place to start is with the Alzheimer's Association ( www.alz.org ). To learn about the latest research and clinical trials, check out the National Institute on Aging's Alzheimer's Disease Education and Referral Center ( www.nia.nih.gov/alzheimers ).

(4)     Join a Support Group.  Facing all the challenges of AD by yourself is asking for trouble. The PWA and their caregiver will both need the understanding, support, and knowledge of an AD support group. Connect with the Alzheimer's Association ( www.alz.org ) and their local chapters. Local chapters often have Early-Stage Programs just for those with a recent diagnosis. Also ask your doctor or hospital about support services near you. There are generally separate support groups for PWA's and their caregivers.

(5)     Consult with a Financial Planner.   Because of the potentially huge costs of care, you should seek the help of a financial adviser who has expertise in long-term-care planning. A financial planner will review available income streams and assets for paying for care at various stages of the disease. You may be able to tap the cash value in your life insurance policy or the equity in your home. And those with long-term-care insurance policies can offset some costs of adult day care, home health care, assisted living and skilled-nursing care. To get a handle on potential costs, ask a care manager or neurologist to suggest care options as the disease progresses. The goal is to keep the PWA as independent as possible for as long as possible. The financial planner could create a financial plan that accounts for a period in adult day care or assisted living while preserving funds for more expensive nursing home care in later years.

(6)     Confirm your Medical Insurance Coverage.   It is very important to know what your medical insurance will cover and what it won't cover as AD progresses and more care is required. If you are wealthy, you simply pay as you go. If you are among the 1% or so of the population who buy Long-Term Care Insurance, your LTC insurance should pay for just about any of the your options, including adult foster care, assisted living, and nursing homes. If you are not wealthy and do not have LTC insurance, and if the PWA is over 65, we are usually talking about Medicare. While Medicare will continue to pay for doctor and hospital visits, prescriptions, and diagnostic tests, Medicare generally does NOT cover in-home care expenses or custodial care for PWA's, whether it is in adult foster care, assisted living, or a nursing home. In order to have that coverage, you generally have to qualify for Medicaid, which has strict income and assets limits. Consult with an Elder Law attorney who does Medicaid Planning to see if the PWA might be able to qualify.

(7)     Familiarize Yourself with Various Care Facilities.   Early on, the PWA will probably be able to continue to live at home, either alone, with a family member, or with the assistance of family members or home-care workers. But there will usually come a time in the not too distant future, as the PWA ages and the disease progresses, when the PWA will need 24-7 care that is not available at home or by their spouse. Rather than wait for a crisis and then start looking, a person in the initial stages of AD, with the help of a family member and the care manager, should start visiting various care facilities, such as, assisted living, memory-care, adult foster care, respite care, and nursing home facilities. There is often a waiting list for admission to the most desirable facilities, so advance planning and selection is necessary.

(8)     Build a Personal Care Network.  Create a Personal Care Network of family members, friends, and neighbors who you trust to help with bill paying, medications, groceries, meal preparation, transportation, house cleaning, and other tasks. Again, attempting to do everything by yourself while caring for a PWA is asking for trouble. The care group can also help to stay in touch with the Team of Experts, long-distance family members, and the local social service agencies.

(9)     Contact Local Social Services Agencies.   Your community's Area Agency on Aging is also a good resource for finding services and professionals you may need over time. The agency can provide information on elder-law attorneys, adult day care, transportation, assisted-living facilities, respite care, and geriatric care managers. ( Find your local agency at www .eldercare.gov. )

(10)   [OPTIONAL] Have a Discussion with the PWA about End of Life Planning Options.   This is a very sensitive subject, and many people, for personal or religious reasons, would rather not discuss it, and I understand that. But for others, this is an opportunity to have a frank and honest discussion with the PWA about ending life with AD on their own terms rather than suffering through the final stages of AD (and often other chronic illnesses or conditions associated with old age). In addition, it is common for PWA's to also suffer the indignity of being incarcerated in a nursing home or memory care unit in the advanced stages of AD. There are options for hastening death besides moving to one of the five states that has a Death with Dignity (Physician Assisted Suicide) Act, such as, Do Not Resuscitate Orders, refusing all medical treatments that would prolong life, and refusing artificial feeding and hydration, among others. Look for a post soon discussing these and other options.

Whether it is drawing up the Action Plan, visiting facilities, or meeting with others who have AD, it is important to keep moving. The worst and most expensive thing you can do is to hide your head in the sand and do nothing.

( Posted July 7, 2017 )

For More Information:  If you would like more information about AD planning, estate planning, or elder law, please contact attorney Robert Teeter at bob@teeterlaw.com or 231-250-6057.


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