End-of-Life Options Act Raises Issue of Incapacity for Living Trust

End-of-life documents, an important part of California Document Preparers’ services, often lead to discussions about related issues. October’s passage of the End of Life Options Act, or the Physician-Assisted Suicide Law as it is called by its detractors, promises to remain controversial after it becomes law in January 2016. Proponents are convinced of the legality and humanity of the new legislation. Opponents, including the Catholic Church, believe it will set the stage for abuse by those least able to speak for themselves—a valid concern in a healthcare system that is increasingly overwhelmed.

A recent article estimated that the Act will affect 1 in 10 people with a terminal illness—a relatively small group because of its strict requirements:

1. A person must prove mental capacity to be able to make this decision.
2. He/she must have a terminal illness that will, by medical judgment, result in death in 6 months.
3. The patient must also make 3 requests to a doctor; 1 must be in writing, 2 oral. The oral requests must be 15 days apart.

These patients are identifying their own incapacity

Clearly, these requirements show that a patient requesting that a physician assist in his or her death is not doing it casually. In each case, the patient has been diagnosed with a terminal illness and is likely facing great pain and suffering. The patient is making this decision while he or she is still coherent and thinking clearly, submitting the request over a period of several weeks.   

The need to identify incapacity in Living Trusts

We all want to grow old gracefully and die peacefully in our sleep. Unfortunately, for most of us, that path is unlikely and the process will be uncertain. It is because of this uncertainty that you should be thinking about the need to define incapacity in your Living Trust. Your Successor Trustee should be given specific instructions on what should be done if you are no longer able to care for yourself.

1. Incapacity. How will incapacity be determined and who will determine it? Your oldest child? Your husband or a family doctor?
2. Assets. How should your assets be used during this period of incapacity? Will you have in-home care? Will you move in with your children and have them take care of you?
3. Outside the home. If staying in your home is not an option, what is your preference—moving across the country to be near your daughter? A large assisted-care facility with lots of activities or someplace small and personalized?
4. Care Manager. Do you need a designated care manager to evaluate the level of care and oversee your overall well-being, making sure that you’re getting to doctor appointments, taking your medications and eating properly?

Your Living Trust should address the issue of incapacity

While the new law will help a few, the number will be limited. If we live long enough, our bodies simply wear out, and the reality is that most of us are going to experience some period of incapacity before we die. Thanks to the miracles of modern medicine, we are living longer, yet the statistics show that an estimated 80% of us will experience some kind of dementia. While we may not have control over our physical or mental health, we can control how our assets will be used to care for us. Now is the time to plan for this.

Have you defined the issue of incapacity in your Living Trust? It may be time to update your Trust for other life events as well—purchase of property, birth or death of a loved one or a major investment. Stop in to one of our Bay Area offices to update your Living Trust soon.