Archive for the ‘Wills & Estate Planning’ Category

Surgery for Elderly Found Risky

Saturday, December 26th, 2009

surgery

If you ever wondered if surgery was more risky for the elderly, you may have your answer. Science Daily recently ran an article that showed that the risk of complications and early death after performed abdominal surgical procedures apepars to be higher among older adults.

It is estimated that one in six Americans will be age 65 or older by 2020 and that 15 percent of this population will be older than age 85, according to background information in the article [Archives of Surgery]. “Approximately 2 million older Americans undergo abdominal surgical operations each year,” the authors note. “For clinicians, patients and families considering abdominal surgical procedures, informed decision making is challenging because of limited data regarding the risks of adverse perioperative events associated with advancing age.”

The procedures included common surgeries such as gall bladder removal, hysterectomy and colectomy. Complications were recorded within 90 days of discharge and deaths were recorded within 90 days of hospital admission.

The 90-day complication rate was 17.3 percent and the 90-day death rate was 5.4 percent. “Advancing age was associated with increasing frequency of complications (65 to 69 years, 14.6 percent; 70 to 74 years, 16.1 percent; 75 to 79 years, 18.8 percent; 80 to 84 years, 19.9 percent; 85 to 89 years, 22.6 percent; and 90 years or older, 22.7 percent) and mortality (65 to 69 years, 2.5 percent; 70 to 74 years, 3.8 percent; 75 to 79 years, 6 percent; 80 to 84 years, 8.1 percent; 85 to 89 years, 12.6 percent; and 90 years or older, 16.7 percent),” the authors note. “After adjusting for demographic, patient and surgical characteristics as well as hospital volume, the odds of early postoperative death increased considerably with each advance in age category. These associations were found among patients with both cancer and noncancer diagnoses and for both elective and nonelective admissions.”

These results, along with others conducted by the author of the Anti-Aging Firewalls site in the article, Age-related surgery risk, show that vulnerability to multiple causes of illness and death begins to climb at age 50, picks up during the sixth decade of life and goes into overdrive in the 80s. With a majority of population reaching these elder levels within the next few decades, the question over whether age-related surgery risks become higher as one ages is answered. The question now, perhaps, is whether or not surgeries such as the common gall-bladder surgery might remain covered under insurance for those over age eighty?

Only time and the government will tell as they move forward on the health care bill in 2010.

10 Top End-of-Life Financial Planning Blogs

Sunday, December 13th, 2009
Two inevitable things - death and taxes.

Two inevitable things - death and taxes.

Changes in tax laws are inevitable, just like death. But, a few bloggers have focused on changes in those laws and what those changes mean for individuals who need to know about them. The following list includes ten top bloggers in estate law as well as in other end-of-life financial matters that affect individuals who live in the U.S. While changes in federal taxes affects everyone, you might check with your state laws as well, by searching for blogs that pertain to your state.

The blogs listed below are in no particular order, but they all have been updated within the past month.

  1. Wills, Trusts & Estates Prof Blog: Gerry W. Beyer is a Governor Preston E. Smith Regents professor of law at Texas Tech University School of Law. He provides his insights into wills, trusts and estates with this blog.
  2. Death and Taxes: This blog, published by Joel Schoenmeyer, Attorney at Law, offers commentary on estate planning, estate administration and real estate issues from the Chicago area.
  3. Death and Taxes Blog: USLaw.com provides this blog, which is frequently updated with news and opinion about probate law, wills, estate taxes and much more.
  4. Estate Planning Bits: The byline to this blog is, “Everything you don’t think you need to know about estate planning.” Categories in this blog include elder law, Medicaid and Medicare and even pet estate planning.
  5. Elder Law Prof Blog: Kim Dayton, professor of Law and director for the Center for Elder Justice and Policy at the William Mitchell College of Law offers information and new concerning elder law policies on her blog.
  6. The Probate Lawyer Blog: Learn from celebrity errors so you can protect your heirs. A probate attorney and shareholder with Barron, Rosenberg, Mayoras & Mayoras, P.C. in Michigan and co-author of Trial & Heirs: Famous Fortune Fights! provides insights with this blog.
  7. Wills & Estate Planning: Julie Garber is your About guide in this blog about estate planning, taxes and documents you may need for your financial affairs.
  8. Wealth Preservation, Trusts and Estates: Learn more about asset protection, death tax reform, elder law and elder abuse, inheritance tax and much more through this informative blog.
  9. Elder Law Blog: Ronald C. Morton, Attorney at Law, provides insights into estate planning, Medicaid and special needs planning and planning for business as well.
  10. Estate Practice & Elder Law Center: A variety of bloggers offer their information and opinions at this blog, which focuses on elder law, long-term care issues, powers of attorney, wills and other elder concerns.

Important Papers in Life and in Death

Monday, October 19th, 2009
Save those old photos digitally to extend the life of the photographs.

Save those old photos digitally to extend the life of the photographs.

Are you planning to adopt a child? Or, are you about to have surgery? Maybe you already lost a home to fire or flood, and you now realize how difficult it can be to replace important papers. Some items, such as photographs, may be impossible to replace. Which papers are important to have on hand, and how can you protect your important one-of-a-kind items? The ability to lay your hands on some documents within minutes is as important in life as it is in death.

The ability to find important papers easily can eliminate stress during a time when you do not need that stress. Additionally, the ability for loved ones to find documents they may need after you die can help them grieve with less stress as well.

Take a weekend to gather together your important documents. Make a list of any of the following that may be missing and plan to replace them immediately:

  • Birth certificates or adoption decrees
  • Marriage license
  • Wills
  • Durable Power of Attorney statements
  • Deeds and titles
  • Diplomas and certificates
  • Insurance policies
  • Contracts
  • Social Security cards
  • Military separation papers
  • Visas and passports
  • Income tax returns
  • Medical and other important financial documents
  • All credit card numbers and passwords
  • The VIN and license plate numbers of your vehicles
  • Information about insured valuables, along with images of those valuables

Make a copy of each document and store one copy in a safe deposit box and keep the originals in a fireproof file box at home in a safe place. You may want to store another copy in another state with a trusted friend or an attorney, as many a bank and entire neighborhoods have been destroyed by floods and fire.

One way to save these documents is by scanning them and filing them on a disc. Be aware that software programs can change from year to year, so save the files as .jpg (picture image) or as a PDF (Portable Document Format), as these two types of file formats have been around for years, and may be around for many more years. Both file formats can be opened by a number of software programs, too. Sometimes, scanning and saving photographs to disc is one way to actually preserve older photographs.

This is the answer to one way that you can save family photographs. Digital photos can be copied onto a disk and the disk left with a friend or loved one. They also can be sent by email to anyone who has email. If you still develop your photographs, make a habit of ordering two copies and store one set away from your home.

If you have already finalized a will and you have a power of attorney, you could use this person as a trusted resource for your important papers. Two safety deposit boxes, located in two different towns or cities, is one solution to saving your important papers and disks. You also can register with an online storage business that allows you to save data on their servers.

Pulling together important papers and photographs is one way you can rest easy when it comes to important events in your life. After all, unless you can find your passport, there’s little chance you can take advantage of last-minute airfare specials on flights to overseas countries. And, you can replace furniture you might lose in a fire or flood, but there’s little chance to replace those one-of-a-kind items such as photographs.

Finally, unless your loved ones know where to find your will, there might be a chance that they will not let you rest in peace.

Once again, safety is stressed in how you store these important papers and documents. Although there is some logic in knowing that a thief cannot find those papers if you can’t find them, you might enjoy the peace of mind in knowing that you can put your hands on important documents within minutes if needed.

Some Solutions to Internet Identity After Death

Wednesday, October 14th, 2009
The key is a safe transition for your Internet identities.

The key is a safe transition for your Internet identities.

What happens to your Facebook or Twitter account if you become incapacitated or die? While some sites may merely wither away or be deleted, other accounts – such as your bank account and credit card accounts online – are open for hacking if passwords aren’t changed often.

We wrote an article about online asset management in March, but since that time a few solutions to online management have come on board to help Internet users pass on their online information securely. The two sites mentioned below also can be used to lead an efficient online life while you’re still alive and kicking, too.

San Francicso-based Legacy Locker is digital safe-deposit box of sorts, holding the virtual keys to your online accounts.

This site points out that while your will or estate or trust protects your physical assets, your Internet information is put out to dry when you die. You can use this site to create a current backup of hard-to-remember passwords, documents and other important information. Just imagine a place where you can gain access to your passport while traveling overseas…this site can do it for you.

But, it also can provide peace of mind if you use it to store and pass on access to all your online accounts. Legacy Locker also can send reminders to either update old passwords or add any new assets you may have created since your last login. With one simple account you can securely store your vital online information, and rest comfortably knowing that all of your digital assets can pass to the people who need to receive them.

You can now also use Legacy Locker to protect any document on your computer as a digital asset as well.

One time fee for Legacy Locker currently is $299.99, or you can opt for an annual $29.99 per year fee. You also can take a free test run with a trial account that contains three assets, one beneficiary and one legacy letter (a farewell message to someone you care about).

The other site is called – appropriately – Slightly Morbid. This site depends more upon notifying your friends about your situations (Katrina anyone?) or your death. The prices depend upon the number of friends you want to notify, your number of “trusted contacts,” categories and ‘Last Words’ messages. The fees, which are one-time costs, range from $10 to $50.

From the site:

At the most basic level, this service is designed to give people a place to consolidate their personal online contacts. Enter email addresses, handles or names if you wish, update them as needed. Once your account is set up, the site will generate a certificate with simple instructions for a trusted third party. Put the certificate with your important papers, or give it to whoever is designated to handle your affairs in an emergency. If there is an emergency, your trusted person can use those instructions to send a notification message, or trigger messages you’ve written yourself.

If you decide to use Slightly Morbid, you may need to add that account to Legacy Locker, as both sites are useful even for those who are alive and well.

Divorce and Your Estate

Friday, October 9th, 2009
Before you remove that ring...

Before you remove that ring...

Have you ever been divorced? If you are married, you can pat yourself on the back, as you belong to the successful side of the “50 Percent Club,” or the half of all marriages that succeed. A full 50 percent of all marriages fail, so you have to wonder at times if your marriage glass is half empty or half full. This thought may cross your mind, especially when you encounter bumps on that marriage road.

If you and your partner have not created a prenuptial or postnuptial agreement, and if your marriage truly is heading south, you need to make plans now to change your estate-planning documents.  You can change these documents even before the divorce is final. Months or years later, when that divorce does become final, depending upon your state’s laws, those divorce or annulment agreements revoke either the entire will or those provisions that favor the former spouse.

But, while you are separated pending a divorce, a change in your will and other estate or death-care documents will help you rest assured that your current wishes will be respected if you should die before that divorce is final.

You also need to remember to change the provisions that relate to your former spouse’s family, especially if your documents contain a residuary clause. Even if your state laws revoke that part of your will pertaining to your former spouse, it may overlook or ignore entirely those portions of your will that pertain to any member of your spouse’s family. This includes any positions you’ve granted to family members (especially if you designated her brother as executor of your will).

According to the book, Guide to Wills and Estates, third edition (pg 160):

Under recent revisions of the Uniform Probate Code, your state may also automatically revoke provisions of other estate documents, such as life insurance policies, in which the proceeds previously would have gone to the ex-spouse. But the odds are against this. Few states have adopted all the provisions of the UPC. It’s best to change any such documents, including IRAs, living wills, and survivorships, or have your lawyer do it. If your spouse is the beneficiary on your employer’s retirement plan, federal law prohibits you from removing him or her until the divorce is final. But be sure to make this change (if permitted by the divorce settlement) as soon as tihngs have been finalized.

Be sure to amend your trusts if needed, too, as well as any documents that declare your spouse as a power of attorney.

Your Patient Responsibilities

Thursday, October 8th, 2009
Are you that bad patient?

Are you that bad patient?

In a previous post, we talked about patient rights. But, what are your responsibilities as a patient? the care you receive at any health care facility depends upon the care offered, but it also depends partially upon how you act as a patient. What are your responsibilities once you become a patient?

Although patient responsibilities may vary by state, the basics are outlined below. As a patient, you might think about:

  • Providing complete and accurate information to the best of your ability about your health and current medications, including over-the-counter products and dietary supplements and any allergies or sensitivities so you can be treated accordingly;
  • Making it known whether you comprehend the course of your medical treatment and what is expected of you for your recovery;
  • Following the treatment plan as prescribed;
  • Keeping appointments and notifying your health care center or physician when you cannot keep an appointment (many health care facilities require a 24-48 hour window for notification, and some facilities may charge you if you do not abide by this responsibility);
  • Enlisting a responsible adult to transport you to and from the health care facility and to remain with you if indicated in your treatment plan;
  • Accepting responsibility for your actions should you decide to refuse treatment or not follow your physician’s orders for treatment and/or recovery;
  • Accepting financial responsibility for your treatment when not covered by your insurance;
  • Following the health care facility’s policies and procedures, and;
  • Being respectful of all employees at any given health care facility as well as to other patients.

In cases where you cannot meet these responsibilities, some health care facilities may refuse treatment or, in the case of incompetence, ask for a legally authorized responsible person, a guardian, next of kin or health care advocate to act in your behalf. This suggestion especially applies to minors and to patients who cannot care for themselves.

Your Patient Rights

Wednesday, October 7th, 2009
You have patient rights.

You have patient rights.

Have you had a surgery recently in a hospital or a clinic? Did you receive a paper that stated your rights as a patient before your surgery? Patient rights vary from state to state, so you may or may not receive information about your rights (or responsibilities) as a patient. For instance, if you live in Tennessee, you may receive notice that a facility will not honor DNR (Do Not Resuscitate) orders, but that they may honor a healthcare power of attorney.

While each state carries variations on a theme, for the most part, you might expect any facility across the nation to honor the patient rights listed below. Please note that these rights are general and that your healthcare facility may or may not abide by them all, or they may add some rights as well. The next article will deal with your responsibilities as a patient, which you are expected to honor. Your rights, no matter your age, race, gender, educational background or religious preference, include:

  • To be treated with respect, consideration and dignity;
  • To be treated in a safe environment that is free of physical or psychological threats;
  • To expect that any architectural barriers will be identified and modified or corrected;
  • To have the ability to access communication aids such as interpreters, sign language, etc. if needed;
  • To be provided with appropriate privacy and confidentiality concerning medical care;
  • To be free of restraint except when indicated to protect you or others from injury;
  • To have your questions, concerns or complaints addressed in good faith;
  • To expect continuity of care without being transferred or discharged to another facility or medical doctor without prior notice except in the case of a medical emergency and within the limits of legal regulations;
  • To be provided after-hour and emergency care;
  • To access necessary surgical and/or procedural interventions that are medically indicated;
  • To be able to obtain in information you need to provide informed concent before any treatment or procedure;
  • To be provided, to the known degree, complete and timely information regarding your diagnosis, evaluation, treatment and prognosis; however, when it is medically inadvisable to provide such information, the information is provided to a person designated by the patient or to a legally authorized person;
  • To make choices and decisions regarding your medical care to the extent permitted by law, including the right to refuse treatment;
  • To formulate advance directives and appoint a surrogate to make health care decisions on your behalf to the extent permitted by law, unless that provision is modified by the institution involved;
  • To have your disclosures and records treated confidentially and be given the opportunity to approve or refuse their release, except when release is required by law;
  • Receive, on request, and at a reasonable fee established by the facility involved, a copy of your medical record;
  • To know the services available at any facility;
  • To know the facility fees for services;
  • To request an itemized statement of all services provided to you through the facility, along with the right to be informed of the payment methodology utilized to formulate that statement;
  • To, at your own expense, have the ability to consult with another physician or specialist if those professionals are available;
  • To be informed of patient conduct and responsibilities rules for any given facility;
  • To refuse to participate in experimental research;
  • To know the identity, professional status, institutional affiliation and credentials of health care professionals providing your care and to be assured that these individuals have been appropriately credentialed according to policy and law;
  • To be informed of your right to change your provider if other qualified providers are available;
  • To be provided wiith appropriate information regarding the absence of malpractice insurance coverage, and;
  • To be informed about procedures for expressing suggestions, complaints and grievances, including any required by state and federal regulations.

Public Opinion Polls and End-of-Life Decisions

Sunday, October 4th, 2009
A living will is part and parcel of estate planning.

A living will is part and parcel of estate planning.

Have you thought more about end-of-life decisions since the recent debate over health care? While some individuals claim that the health care bill (or variations of that bill) carry information about ‘death panels,’ you can rest assured that this term is not used in any terminology. In fact, even some Republican leaders have debunked that myth, as end-of-life decisions also include how to prolong life as well as when the individual – not the government – wants that life to end. Additionally, according to some public opinion polls, Americans overwhelmingly support an individual’s right to decide whether he or she wants to be kept alive through medical treatment.

The Pew Research Center released some figures in August that reveal how some Americans felt about end-of-life decisions even before the health care debate began. Here are some highlights:

  • In a 2005 Pew Research Center survey, 84 percent said they approved of laws which say medical treatment that is keeping a terminally ill patient alive can be stopped if that is what the patient desires. In addition, 70 percent said there are some circumstances when a patient should be allowed to die, while 22 percent said doctors and nurses should always do everything possible to save the life of a patient.
  • In the same Pew Research survey a narrow majority (53 percent) said if they were faced with a terminal illness and were suffering a great deal of physical pain they would choose to stop medical treatment, 34 percent said they would ask their doctor to do everything possible to save their life.
  • In that same survey, older adults are more likely to have discussed their [living] will and what to do with family belongings than they are to have discussed end-of-life medical decisions (76 percent have discussed their will with their children). The elderly usually are the ones to initiate a discussion about end-of-life decisions with their children rather than the other way around. With that said, white adults with parents age 65 or older are more likely than black or Hispanic adults with aging parents to have discussed this issue.
  • On the other hand, perceptions are difficult to fathom. This survey showed that, “while a narrow majority of adults (52 percent) who have discussed these topics with their parents say it was their parents who initiated the conversations, fully a quarter say they themselves brought up these topics. In this way their perceptions differ from the older adults surveyed, most of whom say they are the ones to bring up these sometimes delicate subjects.”
  • Younger people tend to think about making a living will, but often do not carry that thought into action.

The article states:

One way to insure that an individual’s desires about end-of-life medical care are carried out is to put them in writing. Nearly all Americans know what a “living will” is, and most have given at least some thought to their own wishes regarding medical treatment at the end of their life. In the 2005 Pew Research survey, 35 percent said they’ve given this a great deal of thought and 36 percent said they’ve given it some thought. Even so, only 27 percent said they have put their wishes in writing and 29 percent said they have a living will. Though, this represented a significant increase from 1990 when even fewer — 12 percent — had some sort of living will. Not surprisingly, older people are more likely than young people to have thought about these issues and to have formalized their wishes. Half of those ages 65 and older (51 percent) say their wishes for medical treatment are written down and 54 percent say they have a living will.

So, despite the knowledge that people can take control over end-of-life decisions, few have practiced their right to do so. This lack of directive for life or death leaves your fate in the hands of others. Learn more about living wills at What is a Living Will?

Some Terms to Define Advance Directives

Friday, September 25th, 2009
Learn more about advance directives

Learn more about advance directives

The following definitions are used by the American Hospital Association to define terms used in and about advance directives. These terms, which are part of a brochure provided to help patients, families and the hospitals that serve them, presents key resources to enhance educational efforts and to raise awareness around the important issue of advance directives.

Learn more about advance directives, get your questions answered and find more links that talk about this end-of-life planning at the American Hospital Association site, Put It In Writing.

  • Advance Directive: A document in which a person either states choices for medical treatment or designates who should make treatment choices if the person should lose decision-making capacity. The term can also include oral statements by the patient.
  • Artificial Nutrition and Hydration: A method of delivering a chemically-balanced mix of nutrients and fluids when a patient is unable to eat or drink. The patient may be fed through a tube inserted directly into the stomach, a tube put through the nose and throat into the stomach, or an intravenous tube.
  • Cardiopulmonary resuscitation (CPR): A medical procedure, often involving external chest compression, administration of drugs, and electric shock, used to restore the heartbeat at the time of a cardiac arrest.
  • Decision-Making Capacity: The ability to make choices that reflect an understanding and appreciation of the nature and consequences of one’s actions.
  • Declaration: One type of advance directive, commonly referred to as a living will.
  • DNR: Do Not Resuscitate; a medical order to refrain from cardiopulmonary resuscitation if a patient’s heart stops beating.
  • Durable Power of Attorney for Health Care (DPOA): An advance directive in which an individual names someone else (the “agent” or “proxy”) to make health care decisions in the event the individual becomes unable to make them. The DPOA can also include instructions about specific possible choices to be made.
  • Hospice: A program that provides care for the terminally ill in the form of pain relief, counseling, and custodial care, either at home or in a facility.
  • Legal Guardian: A person charged (usually by court appointment) with the power and duty of taking care of and managing the property and rights of another person who is considered incapable of administering his or her own affairs.
  • Life-Sustaining Treatment: A medical intervention administered to a patient that prolongs life and delays death.
  • Palliative Care: Medical interventions intended to alleviate suffering, discomfort, and dysfunction but not to cure (such as pain medication or treatment of an annoying infection).
  • Persistent Vegetative State: As defined by the American Academy of Neurology, “a form of eyes-open permanent unconsciousness in which the patient has periods of wakefulness and physiologic sleep/ wake cycles but at no time is aware of himself or his environment.”
  • Proxy: A person appointed to make decisions for someone else, as in a durable power of attorney for health care (also called a surrogate or agent).
  • Terminal Condition: In most states, a status that is incurable or irreversible and in which death will occur within a short time. There is no precise, universally accepted definition of “a short time,” but in general it is considered to be less than one year.
  • Ventilator: A machine that moves air into the lungs for a patient who is unable to breathe naturally.

The Pitfalls of Joint Tenancy

Thursday, September 24th, 2009
Do not give away your goods until you understand your state laws.

Do not give away your goods until you understand your state laws.

One way many people use to try to avoid probate after death is joint tenancy, which is a way to own property with someone else. Joint tenancy – also known as survivorship – is a legal term that means, basically, co-ownership. If you and your spouse buy a house or automobile in both names and one of you dies, the property then automatically falls into the hands of the survivor who has the name on the property.

Although joint tenancy has its advantages, it also has some pitfalls that are wise to consider before developing this legal relationship.

First, it may be expensive to create a joint tenancy. In some jurisdictions, if one of the owners dies, jointly-held property might defeat the claims of creditors of the deceased co-tenant, or at least make that person’s life more difficult. Additionally, in some cases, the creation of a joint tenancy may create a taxable gift. For smaller estates, however, this tax situation does not apply.

But, other situations can apply to all joint tenants. For instance:

  • If you’re in a shaky marriage, it would not be wise to enter into a joint tenancy. In most states, your individual property becomes marital property once transferred into joint names and could impact your rights during a divorce. If you live in a “community property” state, however, this situation would not affect you.
  • If you do not want to lose control of your possessions, don’t share them. When you give someone co-ownership, you also give them co-control.
  • If your co-owner becomes legally incompeltent to make decisions, part of the property may go into a guardianship, making it difficult to sell a house or a portion of a portfolio.
  • If your partner in co-ownership is in debt, creditors can lay claim to a portion of that property that is co-owned. A lien on a portion of a home would make it very difficult to sell.
  • If you grant part ownership in any property to your spouse or friend and later part because of disagreements, you cannot take back their portion of a property. Regardless who paid for either half of the property, the property belongs to two people.
  • If you plan to use joint tenancy to avoid probate, this means that everything you own would need to be jointly owned. Basically, there is no way to avoid probate with joint tenancy as a sole means.
  • Some states automatically freeze jointly-owned accounts upon the death of one owner until the tax collector can examine them. So, don’t count on the ability to gain access to, or to sell, certain jointly-owned properties until you know about your limitations.
  • If you plan to develop a trust, a joint tenancy may limit your tax saving capabilities. Always talk with a resident state attorney before developing a joint tenancy.

Although joint tenancy may provide a cozy solution for many people, in many cases this co-ownership situation is not productive tax-wise nor does it offer an alternative to a will. Learn the laws of your resident state first, before you make plans to give away half of your property, even if you plan to give it to a trusted relative. Learn about all the pitfalls before you sign your name to joint tenancy, as you may be walking into a situation that could hurt more than help.