Saturday, April 28, 2012

End of Life Decisions

Did you know?...
  • 80% of all deaths in the United States occur in an institutional setting* and,
  • 80% of institutional deaths are the result of a specific, explicit decision to limit life-sustaining or life-saving care*.

Are you prepared?
A Durable Power of Attorney for Health Care (aka Medical Durable Power of Attorney) names persons you trust – as your Agent – to convey health care decisions in the event you cannot communicate for yourself. “Durable” means that the agent’s power survives your incapacity; i.e., the document confers your intent that the agent’s authority shall be exercisable on your behalf during later disability or incapacity.

Pursuant to WA statute, the expectation of your Agent is to (1) determine what treatment decision you would have made if competent (called “substituted judgment”); or (2) if such determination cannot be made, the decision to refuse or consent to treatment should be based on the patient’s “best interests.”

Generally in Washington, even an incompetent individual who is not comatose or in a persistent vegetative state has the right to refuse life-sustaining treatment when in an advanced stage of an incurable and terminal (6 months at most to live) illness and is suffering severe and permanent mental and physical deterioration. Life-sustaining treatment includes artificial means of hydration and nutrition.

Be proactive:
Talk to your doctor about end-of-life issues. Then, discuss what you would and wouldn’t want under various end-of-life circumstances with your potential Agents – before and after naming them – to ensure that they know what health care actions you want them to take on your behalf, especially regarding life-sustaining treatments. Next, visit GA and give your agents the power to act for you.

As part of your estate plan, GA will prepare your Medical Durable Power of Attorney and the companion documents, living wills and anatomical gifting directives.

Educate yourself going forward:
Decisions of the Washington Supreme Court afford guardians, agents, and family members significant discretion to make end-of-life decisions, in consultation with health care providers; and with no requirement for court supervision or involvement.

Contributing Author of this BLOG: Etienna Bachand, Supervising Paralegal, Gregorek and Associates, PLLC.

*Jeffrey M. Sconyers (Vice President and General Counsel, Children’s Hospital & Regional Medical Center) and his acknowledgement of Annette Clark (Professor of Law, Seattle University School of Law). “Elder Law at the Cutting Edge: Annual Fall Elder Law Conference” September 15, 2006, Seattle, WA.

My Dad's Will is Unfair - I Want to Contest It!!

You cannot contest a will simply because you don't like the provisions, or because you received less than you felt you should have received, or because the provisions were, in your opinion, unfair. You must have legal grounds, which, if supported by the evidence, would cause the will to be rejected by the Probate Court.

Lack of Testamentary Capacity

As the question of testamentary capacity applies to wills and will contests, it is often very difficult to disprove. The court presumes that the testator was sane and competent, which means that if you feel the testator was incompetent at the time the will was signed, you have to prove it. This could be quite difficult if the will was signed several years ago, for instance, since it would mean that you would have to produce witnesses and other evidence relating to the specific time the testator signed his will. And remember that eccentricities are not necessarily indicative of incompetence or lack of understanding, and that persons who are suspected of being incompetent can have moments of lucidity, so that even credible evidence of weird behavior and occasional incompetence may not be enough to support a will contest based on lack of testamentary capacity. And if the will was signed in a lawyer's office, you have an even slimmer chance of proving lack of capacity, because most attorneys are extremely careful in monitoring the signing of the will, which normally includes a brief discussion with the testator to satisfy the witnesses that he knows and understands what he is signing.

Improper Execution

Assuming there is some substance to the claim, this may not be quite as difficult to prove as lack of testamentary capacity, since it goes to the actual facts and circumstances surrounding the signing, as opposed to an evaluation of the state of mind of the deceased from a distance. If it can be shown that any of the necessary requirements was missing, the will may be declared invalid and the contest successful. As noted above, however, if the will was signed in a lawyer's office, the chances of proving improper execution are slim. But many testators (to the delight of the many lawyers who are paid to contest wills) write their own wills and also arrange for the signing and witnessing. Such cases are the ones most likely to sidestep an important legal requirement.

Bogus Will

A bogus or inauthentic will generally involves fraud and, like certain other grounds for contest, overlaps with it. An illustration is a will that was rejected as not being the will of deceased. The same would apply, for instance, where the will was originally that of the deceased but someone made an unauthorized change to it, then offered it for probate. This method can be quite difficult to detect, since, in most cases, the will was properly signed by the testator and witnessed according to law. But as is often the case, those stealing from the dead are usually amateur thieves and don't cover their tracks very well.

What is a Trust?

We all must tackle tough decisions concerning personal maintenance and care; estate management in the event of disability; and the preservation, management and distribution of our estate upon our death. Care for ourselves and our loved ones and the management and eventual distribution of our estate deserve the highest quality of legal representation. At Gregorek and Associates, we are prepared to provide you with attention, compassion, and an unparalleled portfolio of legal documents that, when implemented and managed appropriately, will serve you and your family throughout your life and after your death.

Each post will discuss a certain aspect of Estate and Elder Law Planning and give you a perspective of how you might structure your estate plan. It's a bit like building a house, you have to have a detailed plan and solid foundation. Let's explore the beginning of Trust.
A trust is related to "trust" in the ordinary sense of relying on another. A trust is a formal arrangement for property management. The management of the property is according to the original owner's directions.

The Trust Relationship

A trust is a legal relationship between the original owner of the property, the manager, and the person or persons who benefit. The original owner is known as the grantor, settlor, or trustor. The manager is known as the trustee. The person who benefits is known as a beneficiary.

The Origin of the Trust

Until 1535, in England, taxes collected on estates were enforced by the law courts, as long as the owner had both legal title (the right to transfer) and equitable title (possession and use). The equitable title was also known as the beneficial interest.

English lawyers saw that taxes collected on estates could be avoided by separating the ownership of property by transferring just the legal title or the equitable title. Thus, landowners would sometimes transfer their property to a legal title holder to have and hold for the use of a beneficiary, also known as the cestui que use ("one who uses"). English courts upheld the promise between the grantor and the legal title holder that the latter would hold the property for the cestui que use. Such "uses" were often given to children who could not otherwise hold legal title.

The use of split title--the separation of legal title and equitable title--as a tax loophole was closed by the 1535 Statute of Uses. Equitable title was equated with legal title so as to make equitable title owners subject to the taxes collected on estates.

More importantly, the idea of split title was permitted to remain. The trust was born.

Since 1535

Since 1535, trust techniques have been applied to both real and personal property. Because trust matters were considered matters of equity, decisions about them were made by England's equity courts. Today, trust matters are still regarded as matters of equity. Disputes are decided on equity principles without a jury.

Introduction to my BLOG

WELCOME to my Estate & Elder Law Solutions BLOG!  My goal is to Point You In The Right Direction in your estate planning and elder planning areas.  There is so much mis-information and mythology in the marketplace today that I spend a great deal of my time educating the public through my radio program (Northwest Legal Compass, 1150AM KKNW every Friday at noon), speaking engagements to the public and professional groups and in counseling my clients as to how the many estate and elder planning tools really work and the pros and cons; and costs and benefits of each option so you can make a wise and informed decision for yourself and your loved ones as to which planning options are best for you.  Planning is a very personal process and must be carefully crafted to your individual situation.  There are no one size fits all estate plans.  I repeatedly see estate plans that are technically correct and "legal" but are so far afield from what the individual wanted or understood their plan to be that their plan causes more harm than good.  When you plan does not properly communicate your goals and objectives the "law of unintended consequences" will rear it's ugly head and you and your loved ones will not receive the benefits you had hoped for. 

I welcome you comments to every post.  I am very committed to providing you with unbiased information so that you can achieve your desired goals and objectives.  I want your legal plans to enhance your lives, not destroy them. 

First a little information on my law firm, Gregorek and Associates, PLLC.  The law firm offers a comprehensive and multifaceted approach to helping clients meet their goals. With its diverse staff and wide breadth of experience, Gregorek and Associates, PLLC is in the unique position to offer assistance to clients as they address multiple legal and tax-related issues addressing multiple legal and financial issues within the comfort and convenience of a trusted organization.

Gregorek and Associates, PLLC offers an array of legal and tax services for our clients.  Our proven project management style of legal services has enabled us to provide effective legal counsel with positive outcomes for our clients in the following areas: Estate Planning; Elder Law; Medicaid Planning; Charitable Planning; Guardianship; Probate; Trust Settlement; Charitable Planning; Real Estate; Business Formation, Planning and Succession; Tax Matters, Bankruptcy and Foreclosure; Family Law; Fiduciary Services; and our Private Office Services utilizing our Wealth Plan System.