Respect at the End of Life

Do you sense a theme here?

This topic is one that I have thought about often and researched, and I have some very specific and personal thoughts, which I feel compelled to share.  There is certainly a legal component, but also deep and philisophical aspects.

As part of a complete estate plan, clients will execute a Heath Care Proxy. This document appoints an agent who is authorized to make health care decisions in the event of incapacity of the principal.  

The Health Care Proxy, however, is limited in that it focuses strictly on medical care, but not on other wishes you may have regarding your care as you near the end of life.   It is just as important that your agent and others close to you understand your wishes with respect non-medical matters.    It is crucial to have meaningful discussions with those on whose behalf you will be making decisions.  There are many decisions to be made that go beyond an understanding of strictly medical matters.

Just as important as the medical care is an understanding of what the patient wants toward the end of life.    While the patient is still mentally competent, ask the patient:  What is your understanding of the situation and its potential outcomes? What are your fears and what are your hopes? What are the trade-offs you are willing to make and not willing to make? What are your priorities beyond merely being safe and living longer?  And what is the course of action that best serves this understanding?

These questions, and the  responses to them,  help the agent and the family understand the wishes of the patient separate and apart from the strictly medical realm.  When does a patient cross the line from quality of life, to no quality of life?  If quality of life exists, the patient may wish to continue treatment in order to maintain that quality.   Quality of life means something different to each indivudual.  Of course, the severity of the treatment must also be considered—will the treatment be so invasive or painful that quality of life is compromised?   The decision is different for everyone, and it is crucial to understand not only what medical procedures are to be withheld or provided, but also to understand the patient’s fears, hopes and goals as they progress to the end of life. 

Ultimately, everyone hopes for a good death, a death with dignity.  Understanding the patient’s philosophies, fears, hopes, goals, and how to implement those, will guide the agent and the family when faced with making some very difficult choices. It is not only about medical interventions, but also about the decisions one must make in respecting the wishes of the patient.  It is about death with dignity, however defined for each individual.

Ethical Wills

A typical estate plan includes, among other documents, a Health Care Proxy which guides the appointed agent in making decisions about end of life care. This document, however, is strictly legal in nature and does not allow the principal to express any other thoughts and wishes. 

Many who take the steps to establish an estate plan ruminate over how to communicate matters  important to them other than those strictly financial.  This may be done by an Ethical Will.

Unlike a "living will" or "last will and testament," an Ethical Will isn't a legally binding document. It could be a letter—ranging from half a page to a bound book—or a video recording, addressed to those parties with whom you wish to share it. There are no rules governing what goes into it, or when the contents should be shared with the heirs, but the idea behind it is simple: Convey values, not valuables.

Ethical Wills are becoming more common as a way to express non-legal thoughts. It is a letter or document in which you can set out other things that are or have been important to you during your life.

The Ethical Will is written for the benefit of the heirs, but the process can be very cathartic for the author as well.  The author has the opportunity to reflect on his life in ways he might otherwise never do.

Ethical Wills may take many forms.  One verson might be more formal, and include any or all of the following items, or any others not listed here with are important to you:

Your history, past and present.

            Your earliest memories and childhood.

            Your teenage years.

            College years.

            Early Adult years.

            Marriage.

            Children.

            Grandchildren.

Work

Travel

Your later years

Personal Values and beliefs

            At different points of your life, and why?

            What values resonate with you?

            What values are most important to you?

            Who taught you these values?

            What values do you wish to see in others around you?

            What values do you wish to leave to others?

Your hopes for the future

            Hopes and dreams for loved ones

            Family traditions to be continued

            How to help others     

            How to do good in the world?

            How to make a difference?

            How to find peace

Life lessons and achievements

Growth from losses and failures

Achievements and accomplishments

Gratitude:  what are you thankful for, and why?

Advice to your family and friends

Personal values and beliefs

Any closing thoughts

Another version may be more informal, and simply be an enumeration of things you would want others to remember about you.

In simplest form, an Ethical Will talks about quality of life issues, what constitutes a “good death”, and when that good death should be allowed to happen.  It provides guidance to your Health Care Agent which, in the context of a grave or terminal condition, expresses at what point you feel your quality of life would be so compromised, or non-existent, so that you wish further treatment to be discontinued.   In making such decisions, you might discuss with your doctor, and/or your loved ones, what fears you have, what your priorities are,

Ultimately, it can be whatever you choose it to be.  It may provide history, thoughts, feelings and hopes about your life and those you hold dear.  is a gift to your loved ones.

It's Time To Have That Talk

As parents age, many families still have difficulty discussing end of life care.  Adult children don't like to think of their parents as mortal, and if they refuse to have the discussion, maybe mom or dad will never die.   Unfortunately, this is not true.  Perhaps the adult children feel that such a discussion is unnecessary.  Perhaps they are just too busy to find the time.  But many adult children become caregivers for their elderly parents, either physically, by having mom or dad move in with them, or administratively, by ensuring that mom and dad get the needed care elsewhere, such as in assisted living, or home with a caregiver.  It is very important for adult children to sit down with mom and dad and discuss a couple of things.  One is end-of-life care in the event of a terminal illness-- what medical interventions would they want, and not want, as they see the end of their life?  For this, a Health Care Proxy is an invaluable tool on which the adult children can rely for guidance, but it is no substitute for the conversation.  The other major topic is burial and funeral wishes.  Some wish to be buried in a plot, others wish to be cremated.  Some would like a funeral or memorial service, others do not.  Some would like visiting hours or shiva, others would prefer to skip those things.  By having the discussion with elderly parents ahead of time, when mom or dad passes away, the children will not have to guess what to do, especially at such an emotional time.  Most funeral homes offer advance arrangements, such as identifying a burial plot and discussing the type of services that will be needed.  This is difficult stuff, and losing a parent might be one of the greatest emotional challenges an adult child will ever face, but it is a gift you can give both to your parents and to yourself if you are armed with this information in advance. 

Estate Planning is Important!!

Well, it has certainly been a long time since I posted on this blog.  I have been posting on my business facebook page (https://www.facebook.com/pages/Law-Offices-of-Judith-R-Pike/118159531528358?ref=br_tf) and between that and all the things that life tosses ones way, this blog became relegated to the back burner.  But now I am going to try to revive it, and hope you will find the new posts as helpful as those which were posted in the past.

Today's topic is estate planning.  I came across a survey performed by Lexis Nexis in 2011, and wish to re-post some portions of the report here, because I think the points it makes are important.

Survey Finds Most Americans Recognize the Importance of a Will or Estate Planning, Yet Few Have Necessary Documents in Place

Results Show Less Than Forty Percent of Parents with Minor Children Have Wills

July 19, 2011 — NEW YORK - A new national survey commissioned on behalf of LexisNexis®, finds the majority of Americans (60 percent) believe that all adults should have a will or estate planning documents in place, yet only 44 percent report that they currently have any such documents. In stark contrast, more than one third (36 percent) of Americans with minor children do not believe that wills or estate plans are among the most important documents to have on hand. Rather, adults with minors in the household rank birth certificates (76 percent) and titles/deeds for property and vehicles (70 percent) as the most important. In addition, although the majority of parents with minors in the household (75 percent) understand that a court will decide who the children’s legal guardian becomes if there is no will at the time of both parents’ death, only 39 percent have any estate planning documents in place.

"The 2011 Wills & Estate Planning survey shows parents may not be taking the necessary steps to ensure their wishes for the care of their children and estate are followed in the event that both parents were to pass, for example due to an accident," said David Palmieri, vice president and managing director of Marketing and Consumer Solutions at LexisNexis. "Additional research indicates that many parents consider wills to be more appropriate for those with significant wealth and as a result, they risk leaving the fate of their children in the hands of the courts instead of being directed by an enforceable legal document."

Reasons given for not making a will or estate planning a priority vary widely. According to the survey, 37 percent of Americans cite a current focus on "essentials," such as paying bills and buying groceries, as the top reason they don’t have any estate planning documents. Other reasons cited by survey respondents include:

• Not necessary (18 percent)
• Too complicated to deal with right now (16 percent)
• Too expensive (14 percent)
• Belief that their spouse and/or children will automatically receive any assets that they have (13 percent)
• Too time consuming (6 percent)

 Other findings indicate that age and gender play a role in whether a person has a will or estate planning documents. For example, the majority of Americans report that they are most concerned about preserving their health (70 percent) and having enough money to retire (50 percent) as opposed to protecting their financial assets (43 percent), while women are more likely to be concerned about maintaining their weight (47 percent) than protecting their financial assets (44 percent).

Additionally, Americans 18-34 years old are more likely to report that they are most concerned about preserving their health (64 percent), having enough money to retire (52 percent) and maintaining their weight (51 percent) rather than protecting their financial assets (44 percent). Interestingly, one in five Americans 18-34 years old (22 percent) believe it is becoming less important to have wills because people are living longer, healthier lives.

There is no need for me to repeat any of the messages of the above article-- they speak for themselves.  Let me just say that everyone should have an estate plan, regardless of your age and stage of life.  Parents of minor children should provide for guardians and create trusts to manage assets until the children come to an age which is appropriate for them to inherit a potentially large sum.  Older folks should put their affairs in order as a true and huge gift to their surviving children upon death.  These are just two examples of classes of people who should do estate planning, but it applies to anyone and everyone with assets and opinions about where those assets should go upon death.  So delay no longer--- call me to get started on that estate plan you have been putting off for any number of years.  You will not be sorry.

 

Health Care Proxies

One important component of a comprehensive estate plan is the execution of a Health Care Proxy. A Health Care Proxy is a document that allows the principal to appoint an agent with the legal authority to make medical and health care decisions on his or her behalf in the event of incapacity. The agent is legally empowered to authorize or withhold medical care in accordance with his or her best interpretation of the wishes of the principal. Because the agent must make such decisions and directions, a comprehensive Health Care Proxy will also include the principal's expression of wishes regarding types of medical care to be withheld or provided in the event of a terminal illness. Typically, the principal will be asked to express preferences regarding (a) do-not-resuscitate orders, (b) artificial respiration, (c) artificial nutrition, (d) major or minor surgery, (e) chemotherapy and other medications, and (f) a variety of other medical procedures. If you are embarking on the preparation of an estate plan, you would be well advised to consider who you would trust with making health care decisions on your behalf, and whether you would wish such medical procedures to be withheld or provided in the event you have a terminal condition and are unable to make such decisions on your own. A comprehensive Health Care Proxy can ensure that your wishes on this important subject will be carried out in accordance with your expressions.

Estate Planning: Keep that Paperwork Organized!

The March 24, 2010 New York Times has a great article on the importance of making sure not only that your estate planning documents are in order and up to date, but also that your beneficiary designations, titling of assets and general paperwork are in order so that your heirs can easily manage your estate in the way you intend. It's worth reading this article, so click here: http://www.nytimes.com/2010/03/25/your-money/estate-planning/25ESTATE.html?emc=tnt&tntemail1=y. I do (of course) take exception to the statement that a Will can be easily facilitated by the use of an online do-it-yourself site; there is simply no substitute for the advice of a competent estate planning attorney who will do a comprehensive review of your assets and general needs, since there is far more to the process than just slapping some words down on paper and calling it a Will. The article does, however, give good food for thought. Have you done your estate plan yet? If not, call me and I can help make it happen in an efficient and complete manner.

Engage With Grace: End of Life Decisions

Today marks the launching of a "blog rally" spurred on by Engage With Grace, an organization designed to encourage discussion and decision regarding end of life issues. As stated on their website (http://www.engagewithgrace.org/) , "we make choices throughout our lives – where we want to live, what types of activities will fill our days, with whom we spend our time. These choices are often a balance between our desires and our means, but at the end of the day, they are decisions made with intent. Somehow when we get close to death, however, we stop making decisions. We get frozen in our tracks and can't talk about our preferences for end of life care. According to studies, 75% of Americans would prefer to die at home, but anywhere between 20-50% of Americans die in hospital settings." Many surveyed confirm that the important, detailed discussions regarding end of life care have not taken place with loved ones. Engage with Grace has designed the "One Slide Project" with the simple goal of getting the conversation about end of life experience started. They hope that this one slide, with just five questions designed to help get us talking with each other and with our loved ones about our preferences, will be widely disseminated in order to educate people to communicate their preferences so that we can all end our lives in the same purposeful way we live them.


I commend Engage With Grace for their efforts in this area. As an estate planner, I regularly have this discussion with clients and encourage all to execute a Health Care Proxy setting out preferences for end of life care and treatment. I also encourage clients to have a detailed and frank discussion with the appointed holder of the Proxy, and other loved ones, about the choices expressed in the document so that fully informed decisions regarding care may be made by loved ones at the appropriate moment, based on a clear understanding of the wishes of the principal. Regardless of your particular wishes or philosophies regarding end of life care, a clear and well considered expression of intent is a gift to your loved ones and a most empowering way to influence the end of your life in the same way you have lived it. So here is the "one slide"- I encourage everyone to consider these issues, have the discussion with loved ones, and most of all, confirm them in a legal document that will be binding when the time arrives.