Tuesday, June 26, 2018

Former first lady Barbara Bush had been in declining health for several years. Just days before her death at age 92, we read that she was seeking “comfort care” for her terminal conditions of congestive heart failure and chronic obstructive pulmonary disease. Comfort care translates to preventing or relieving suffering, providing the best quality of life possible and respecting the dying person’s wishes. No Hail Mary efforts to try to extend her life; rather, Mrs. Bush chose to spend her final days peacefully at home with her family.

Growing controversy about patient wishes for end-of-life care

Mrs. Bush’s announcement came at a time of growing controversy about documenting and fulfilling patient end-of-life wishes. We wrote earlier about Washington state’s new guidelines for dementia patients being allowed to die if they are refusing food. While many patients identify their wishes for not being kept alive by artificial or extreme measures, that’s not always the reality. Even those who create an Advanced Healthcare Directive and a DNR order and make sure their doctors and family understand their wishes, there can be a disconnect. The medical staff who treat these patients are trained to save lives–not let them die. And it’s not unusual for family members, acting on behalf of their loved ones, to ignore those wishes, keeping them alive at all costs.

A national effort to define and document patients’ wishes

There’s considerable momentum behind efforts to define and document patients’ wishes before they’re placed on costly medical interventions aimed at prolonging what is a low quality of life. Ellen Goodman is co-founder of the Conversation Project, an organization that encourages families to discuss and document their end-of-life preferences. She applauded the Bush family announcement: “This forthright, outspoken woman has made her wishes known and the family is standing by her.”
Bush’s was a personal decision that she didn’t have to share, but it may encourage others to think about their choices, talk about them with their families and document them, with the confidence that they will be honored.
Dr. Haider Warraich, a fellow in cardiovascular medicine at Duke University Medical Center and author of the book “Modern Death,” also applauded the Bush family for putting the phrase “comfort care” into the public sphere so that other people can consider it “a viable option at the end of life.” But Dr. Warraich is concerned that the term comfort careis misunderstood, that it involves stopping medical treatment, which is not the case at all.

Comfort care may also be described as palliative care

Palliative care focuses on managing patients’ symptoms to keep them comfortable, helping them retain their dignity. They are not being denied medical treatment. For heart-failure patients, for example, comfort care generally means opting not to use a breathing machine or CPR, but patients continue to receive medical treatment, including diuretics to remove excess fluid from their lungs.

A real-life experience with palliative care

My own experience with palliative care involved my 72-year old neighbor, Marian. She was always healthy and active and took good care of herself. Her doctor had been treating her for acid-reflux disease for two years. Sadly, her doctor should have been treating her for pancreatic cancer, and her new medical team gave her six months to live. A very practical person, Marian went about making arrangements and putting her life in order. Her sister and brother-in-law arrived from the UK, and we made a little bucket list of simple, fun Bay Area things to do that would be easy for Marian. Unfortunately, Marian’s disease didn’t give us time to actualize any of our plans. Within a month, she was in terrible pain and losing weight. She was weak and her skin began to turn yellow.

Marian had no interest in any kind of heroic efforts to prolong her life

Marian soon needed a more skilled level of care, so her family enlisted the services of hospice. In this case, it was a woman named Angela. For the last two months of Marian’s life, Angela, the gentlest person I’ve ever met, spent long hours with her. They would talk, listen to music, or just sit quietly, sometimes holding hands.
Angela was an extraordinary comfort to Marian, providing increasingly strong doses of morphine to make Marian’s last days as comfortable as possible. She died peacefully in her sleep. Comfort care was the way Marian chose to live the last days of her life. Angela’s final act was to leave little handwritten notes informing us of Marian’s death. I can’t say enough about the great work of this organization.

Have you talked with your family about end-of-life care?

Our Living Trust package includes an Advanced Healthcare Directive and Power of Attorney. Contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment today.Our dedicated team is helpful, compassionate and affordable.

Wednesday, June 20, 2018

Who Inherits Your Selfies?

When a loved one dies, there are laws governing the distribution of property. If that person had a Will or Living Trust, the legal document identifies the way the estate will be distributed. If the deceased did not have a Will or Trust, the estate goes through Probate, which follows its own predefined set of rules.

But the laws governing digital media are not so well defined

The rules get murkier and more restrictive when it comes to our electronic files. Just what happens to all of the family pictures you’ve posted to Instagram and Facebook, the emails you’ve sent to friends or relatives and the financial records you’ve stored in the cloud on some remote server farm?

California’s AB 691 governs the process of managing online accounts after owner’s death

California’s Probate Code was amended by AB 691, signed into law by Governor Brown and took effect in January 2017. AB 691 governs the process for managing online accounts and other digital assets after their owner’s death. According to AB 691, there are three approaches for dealing with a deceased person’s digital assets in descending order of priority.
  1. Instructions provided in the online tool itself:A user may designate a representative on the application to make specific or discretionary changes to the digital contents. For example, Facebook can allow you to specify within your account which person should have the right to make changes to your profile upon your death, and you can leave directions on how that representative should carry out that responsibility. This designation overrides any contrary direction that may have been left in a Will or other legal document.
  2. Will, Power of Attorney or other legal document:If the user has left no specific instructions within the online tool itself, that person may direct a representative to handle their digital assets through a Will, Power of Attorney, Living Trust or other record.
  3. Terms of service agreement:If there is no instruction left by the user for an online tool, and there is no Will or other legal document specifying how digital assets should be handled, the online tool’s service agreement will control how the account should be handled upon a user’s death.

Protect your digital legacy rather than leaving it up to online accounts

Today’s online accounts have replaced the traditional photo albums of the past, and a digital legacy can last indefinitely. It’s here where we document our lives with pictures and accounts of our activities, friends and families through the years. It’s important to identify how you want these accounts—and your memories–handled after your death. If not identified in the application itself or in your Will or Living Trust, their future is regulated by the service agreement to which you agreed when you created your account–the same one you likely did not bother to read.

Update your Living Trust to include your digital assets

We always recommend updating Living Trusts with important life events. Adding that person who will manage your online accounts is another very good reason to update a Trust. Contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment today. Our dedicated team is helpful, compassionate and affordable.

Wednesday, June 13, 2018

The Slippery Slope of Multiparty Bank Accounts

Mary had just turned 79 and was recovering from a heart attack and open-heart surgery—a major health event that had made her rethink her life. While Mary still lived alone in the family home, she got a lot of help from her adult children, who lived nearby. Her daughter Alice paid her bills, did her grocery shopping and took her to appointments. Mary decided to add Alice’s name to her checking account. It gave her peace of mind to know that if she became ill or incapacitated and could no longer sign checks, Alice would be able to seamlessly step in to pay bills and manage her affairs.

Alice’s name on her account gives her access to all of Mary’s money

Mary’s assets include her home and a checking account with a significant amount of money. By adding Alice’s name to this account, Mary was giving Alice access to virtually all of her money. Mary was grateful for Alice’s help, but she was also close to her son, Bill, whom she counted on for help with her yard and household repairs. Did Mary realize that this wasn’t just a convenient solution: she was giving all of her money to Alice, exclusive of Bill.

Mary’s son Bill: Concerned that all of the money will go to Alice

Not surprisingly, Mary’s son Bill’s reaction was less than enthusiastic. “Giving anyone access to all of your money, unchecked, sounds unwise. What happens when you die? Will Alice get all the money left in your account? Her name is on the account, and everything will default to her.”
Mary reassured Bill that Alice would share whatever was left in the account with him, that access to her account was only for the purpose of taking care of Mary’s expenses. The reality? She had no way of knowing if Alice would share the remaining account balance with her brother. Bill suggested creating two accounts, one for household expenses and the other for savings, giving Alice access only to the smaller checking account, but Mary liked the simplicity of keeping all of the money in one account.

A mother, a daughter and two bank accounts help jointly

In another case, two bank accounts were held jointly by a mother and daughter, and the decedent’s son disputed their ownership. At the time of the mother’s death, the accounts held nearly $500,000. The daughter saw the mother five-six times a week and was responsible for scheduling and overseeing her mother’s medical care, hospital transportation and other matters. The mother opened the joint accounts so it would be easier for her daughter to help. The daughter testified in a lower court that her mother asked her to meet at a bank to open the accounts and that she signed a signature card that gave her complete access to both accounts. The daughter testified that her mother informed her that the money in the accounts was for her use.

Funds belonged to daughter by Right of Survivorship

The son claimed the funds that remained in those accounts after the decedent’s death were intended to pass to several Trusts established by his parents during their lifetime. However, the court could find no evidence of such intent and ruled that the funds belonged to the daughter by Right of Survivorship.

Right of Survivorship: A joint account passes to the surviving account owner

  • According to the California Court of Appeal, unless there is clear and conclusive evidence to the contrary, ownership of a joint bank account passes—as a matter of law–to the surviving account owner by Right of Survivorship.
  • In both of these case studies, the money defaults to the daughters by Right of Survivorship. Regardless of intent, giving their daughters access to their accounts means that when these women die, their daughters will inherit all of the cash in these accounts.

Joint bank accounts are often used when planning for incapacity

In both of these cases, the families established joint checking accounts to help care for a parent. They provide easy access to money for incidental expenses, healthcare payments and emergencies. But as our case studies demonstrate, when there are other family members and potential inheritances involved, there is room for conflict.
Multiparty accounts may seem like a good solution for incapacity planning, but there are better solutions:
  • Create a smaller joint account linked to a larger account in the name of the Trust. This provides the necessary liquidity, but since it is linked to the Trust account, there is no right of survivorship.
  • Open an account in the name of the Trust, with both parties listed as co-trustees. This ensures that upon the parent’s death, the funds remain in the Trust.
  • Establish a Payable Upon Death (POD) account. The account owners—in our cases, both mothers–designate who should receive any money that remains in the account upon their deaths.
  • Insert “in trust for” to the account title. This would clearly indicate the purpose of the account and the intended beneficiaries.
Contact California Document Preparersat one of our three Bay Area offices today to create a Living Trust. A Trust is a much better way to plan for incapacity of your loved ones. Our dedicated team is helpful, compassionate and affordable.

Tuesday, June 5, 2018

Judge Overturns Doctor-Assisted Suicide Law and Reopens the Debate

On May 15, Riverside Superior Court Judge Daniel A. Ottolia declared that the California legislature violated the law by passing the End of Life Option Act (EOLOA) in 2015 during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law. "We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."

The response from California Attorney Gen. Xavier Becerra

Becerra’s response: "We strongly disagree with this ruling, and the state is seeking expedited review in the Court of Appeal." Becerra has filed an appeal.

Ruling reopens an emotionally charged issue

Judge Ottolia’s ruling reopens an emotional debate on Californians’ ability to make decisions on how they will spend their final days. John C. Kappos, an attorney representing Compassion and Choices, which advocated for the law, said he believes the passage of the law was constitutional because aid in dying is a healthcare issue. "Ultimately, we are confident an appeals court will rule the Legislature duly passed the End of Life Option Act and reinstate this perfectly valid law, which the strong majority of Californians support."
Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

One view: A short-term victory for those who object

Harry Nelson, a Los Angeles healthcare attorney thinks it's unlikely the law will be overturned permanently. He said that even if the court's decision stands, the Legislature would probably be able to reinstate the law with whatever changes the court deems necessary. "I think this is a short-term victory for people who object on religious principles to the availability of this option," said Nelson, who represents several doctors who have written prescriptions under the law. Nelson believes that Ottolia's decision to give Becerra five days to file an emergency appeal was "aggressive, leaving the attorney general's office with a really narrow window to do everything they need to do to get the court of appeals to intervene and uphold and continue the law," he said.

An opposing view: Assisted suicide advocates circumvented legislative process

"This ruling affirms that assisted suicide advocates circumvented the legislative process," Matt Valliere, executive director of the New York-based Patients Rights Action Fund, which opposes legalizing physician-assisted suicide, said in a statement. "It represents a tremendous blow to the assisted suicide legalization movement and puts state legislatures on notice regarding the political trickery of groups like Compassion and Choices."

EOLOA: A look back and a look forward

  • California’s End of Life Option Act was signed into law in 2015, and the law went into effect on June 9, 2016.
  • In the first six months, more than 100 people used the law to end their lives.
  • California's data from the law's first six months show that 173 physicians wrote 191 prescriptions statewide.
  • The law allows patients with fewer than six months to live to request end-of-life drugs from their doctors.
  • The law’s passage was controversial and it has remained a divisive issue. Conservatives argue that the limits on euthanasia gradually erode, and that the law endangers the weak and marginalized. In the years since the law went into effect, groups opposing assisted suicide have continued to lobby for its repeal.
  • Writing the lethal prescriptions is voluntary for doctors and medical facilities in California; some, including all Catholic and church-affiliated hospitals, have not allowed their physicians to prescribe such medicines.
For those who want to use the EOLOA, checks and balances are carefully built into the law. A patient must make two oral requests, at least 15 days apart. There must be witnesses and second opinions about their conditions. The process is spread over time to avoid someone’s making an impulsive decision.
Becerra is expected to file an appeal to a higher court, but he is yet to do so. Experts believe it is unlikely that the decision will affect assisted suicide in California in the long term. Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

Creating an Advanced Healthcare Directive

End-of-life care options can be detailed in an Advanced Healthcare Directive that is part of our comprehensive Living Trust package. Contact California Document Preparersat one of our three Bay Area offices to get started today. Our dedicated team is helpful, compassionate and affordable.