Little Sheets of Paper

Tonight my Dad is in the rehabilitation center following knee surgery. From what I gather this is a little like giving birth; it is awful for mother and child but both are really happy a few weeks later.

Upon admission, transferring from the hospital and full of pain medications, a vast array of paper was placed in front of him requesting his signature. Some was about insurance, some about care, and some could end his life.

These little sheets of paper included a health care directive to physicians that gave the facility permission to end his life had he checked a box that said so. Four days after surgery and still in considerable pain, I question his competence to make a reasoned decision. The directive is green in color; green for “go”.

Because my mother was there she stopped the process until I could arrive. Upon my arrival the nurse explained again to my parents, and me, the purpose behind the health care directive was “so the doctor would not have to read through all the legalese of a more complex document” . That is literally what she said during her remarkably practiced speech for all incoming patients.

In other words the Doctor has no time to understand the intent of the patient about whether he lives or dies as expressed when contemplating these issues in a competent, sober manner while consulting with his lawyer who then drafted the same based on the law and his experience.

Just check the box on the little sheet of paper sir, it is better for all of us. That’s right, the green one. Green for “go”.

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Night of the Living Trust

What seemed like a good idea at one point often becomes an unwanted “person” that lives on and makes everyone miserable.  Like Zombies, trusts that have outlived their usefulness need to die, but because the residual beneficiaries may not like the idea of a trust being killed off in favor of the person who wrote it to begin with, the Trustor, the resolution of its life moves slowly and infects people with despair. It also infects them with a dislike of lawyers and the entire complex business of dying. Why cant it just be simple? Because it isn’t.

Often the lawyer wrote this thing but they had good reason to; the client came in certain this is what they wanted. Just as often and perhaps more likely they never consulted a lawyer who might have persuaded them that the effort of a living trust is too much. For example usually people forget to put everything they buy into the trust defeating a purpose of avoiding probate.

Most tragically the do it yourself Trustor may forget to make this a revocable trust, meaning the family members obtain a real interest in the property they are residual beneficiaries of when he funds the trust, even before the Trustor dies. This means they all own a piece of the living trust. The remedy is to get everyone to agree to give the property back to the man who made the mistake in the first place.

But lo, there may be a beneficiary out there not willing to let go and hence, we experience the horror of the Zombie Trust.

Be afraid, be very afraid.

True Stories from the Twilight Zone Part 2

Modern medical science is a wonderful thing. I have witnessed with my own eyes how one can be suspended between life and death in that places Rod Sirling used to call the Twilight Zone. Sometimes however we just age into that place of time and space the rest of humanity calls “dementia”.

In this state your Will does not help you. It is a “dead letter” until you yourself are dead, then zombie like the Will comes to life.

So what do we do in the Twilight Zone? Once there, you are not competent to sign anything that anyone will recognize. Instead someone, often a family member launches a guardianship proceeding. This takes at least two lawyers and the associated cost; one to file the petition and one appointed by the Court to act as your guardian ad lietum.  If in your demented state you declare you are not a danger to yourself financially or physically a third lawyer is assigned and we may end up in trial.

I have been such a third lawyer. Even though it was clear my client was hearing only the signature strings of The Twilight Zone we spent a day in trial. Washington’s guardianship statute does not give the third lawyer the latitude to concede defeat, he must go to trial.

And so on a sunny day in early May I spent my time in trial with my elderly client who wandered around the courtroom during the proceeding, hollering things like “There is the Judge, on his Altar!”. ( Some lawyers I know might say my client wasn’t so demented after all.)

The cost of all of this was well over $10,000 to the client. The experience: priceless.

The take away from all of this is there has to be a better way. Is there not a means to convey to some trusted person or people a means to handle financial and health care decisions when you cannot? The short answer is yes.

1) Durable Power of Attorney. The power of attorney means you hand someone else the authority to work for you in your place. It is “durable” because it survives your incapacity or dementia. Otherwise if not referred to as durable, the law says that paper lapses because you are no longer able to revoke it when you are in the Zone.

This document can be effective immediately, leaving open the chance someone might use it a little too early, or “springing” taking effect when you can find a doctor willing to say in writing you cannot handle your affairs any longer.

The revocation and reassignment of this authority as dementia approaches is the stuff of legend in my business, leading to that court fight and perhaps guardianship you tried to avoid in the first place.

2) Care Managed Trust or Revocable Living Trust. This device allows you to put into your own hands as Trustee then the hands of a trusted person as the successor Trustee all your property. It can also take the place of your Will. It is not a “dead letter” as you enter dementia but instead is very much alive and continues to operate as you pass from the Twilight Zone across the Great Divide. It can avoid probate.

I have yet to see one of these instruments come into the office that has not been terrifically expensive to set up, maintain, and in the end, doesn’t have all the property transferred to it, necessitating a probate of the left out property.

All kinds of things happen in the Twilight Zone. The best you can do is make some judgments ahead of entering that dimension of time and space, decide to trust or not to trust, and then live the rest of your life.

True Stories from the Twilight Zone Part 1

There is a dimension of time and space where modern medical science allows us to linger before passing over and beyond the Great Divide. States have sought to address this waypoint in the Twilight Zone by mass producing easily signed directives to physicians designed to allow persons wishing to pass on without being kept alive by machines. The form is often referred to as a “living will” in the vernacular.

I Googled for the form and found someone is willing to sell you a document for ten bucks that is identical to that which is available for free at Revised Code of Washington 70.122.030. Now the form is fine, but it is simplistic, and mandates decisions made the signatory who is usually without either a law or medical degree.

True Story: The date is January 10, 2011. My best friend lays in a coma in Seattle. His brother and I are looking at the directive to physicians I drafted and my friend signed just months earlier. The neurologist thanks me for the clarity and ultimate discretion we vest with the medical attorney in fact, namely his brother. Doug was in the Twilight Zone, and he wasnt coming back. There had however been several days earlier where it was questionable whether he would return. Because we had a conversation about what the directive should look like, because we have some understanding of what it means to get the heart and lungs going again, and because I at least possess the legal understanding of what we were doing, we were allowed the grace to hang on to hope for just a few more days before removing life support.

The forms will not give you this personal intent as drafted expressing accurately the mix of legal and medical desires of the individual. Maybe that is why it is free.

More True Stories: I am a veteran of story after story of families coming in for the probate telling me the recently passed loved one had a directive to physicians neatly printed on a 4 X 6 card which, when received by the medical staff caring for their loved one,  meant right away, “care”, as we have come to understand it, was withdrawn. Death soon followed and no one in the family was really ready for the event.

Perhaps the question a person signing this document really has to ask themselves is How quickly do I want to leave the Twilight Zone?