Month: March 2019

“The Greatest Wealth is Health”​ -Virgil

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Health is something most of us fail to appreciate, especially when we are young.

Health is something we only true value when we lose it.

There is a sense of helplessness that comes with being ill. There are many things in life that are out of our control and, under some circumstances, certain medical situations can be unpredictable, unimaginable and devastating.

But there is something we can all do to preserve our wishes when it comes to health care decisions and even end of life issues.

Advance Directives are written statements that are valid during a person’s life but onlywhen they are incapacitated. There are two Advance Directives you should know about. I will be addressing one of them in this article; the next article in the Series will address the other.

Incapacity, for brevity’s sake, is when a person is unable to make their wishes known because they cannot communicate verbally or otherwise, or is incapable of processing or understanding information due to neuro-cognitive deficits caused by any number of medical conditions.

The document is a Health Care Proxy and it is vital to any person alive. The latter statement is not an exaggeration.  The following hypothetical will, hopefully, drive the point home.

Jane Smith and John Smith are in their forties. They have been married for eight years with no children.

John comes from a large family, while Jane is an only child.

Neither has any major medical issues and are in seemingly good health.

Then one day, Jane and John are driving down a local road when they are in a head on collision with another driver who ran a red-light driving way over the 25 miles per hour speed limit. John is ejected from the car.

Jane was wearing her seat belt, while John was not.

While John survived the accident, he was very seriously injured. He suffered a traumatic brain injury when his head hit the glass, he was ejected from the vehicle and his body hit the pavement.

Unfortunately, he never regained full consciousness. He has not spoken in over a year and will only briefly open his eyes but does not focus on anything or anyone. He cannot feed, toilet or clothe himself. He is confined to his bed. He was placed on a mechanical ventilator to assist with breathing since he was unable to do so on his own. A tracheostomy was also performed.

The neurologists are unsure of what John can hear or understand, but they do not expect a reversal of his condition.

John had, one more than occasion, told Jane that he did not want to be kept alive through artificial means if he were to suffer an accident that left him in bad shape. Jane wanted to honor those wishes.

John’s siblings, however, objected to Jane’s plans. They wanted to keep their brother alive at all costs.

Who did the hospital listen to? Neither side. They kept him alive through artificial means because that is what hospitals are supposed to do. There was no Health Care Proxy (or a Court order) which allowed the medical staff to follow anyone’s directives regarding care and life sustaining measures.

Jane’s status as John’s legal wife carried no weight when it pertained to health care decisions, particularly life sustaining measures.

NOTE: There is a solution to the above scenario—and I will address this later in the Series.

This is a terribly sad hypothetical, but it is a composite of real life situations I have run into repeatedly through my guardianship practice. It is more common than you think and more emotionally devastating than I have painted here.

What would have changed in this scenario if a Health Care Proxy had been in place?

If the Proxy was properly drafted, executed and witnessed, the Principal (in my hypothetical, John) would have named an Agent (his wife, Jane) to make health care decisions. And John’s wishes would have been followed. No extraordinary measures would be taken to prolong his life. He would be given medication to make him comfortable and to lessen and eliminate physical pain.

An Agent must be a person the Principal trusts, who is reliable and responsible and who has displayed a pattern of good decision making. They must be a person who can act decisively under pressure.

If in my hypothetical, Jane is a person who is indecisive, unreliable or buckles easily under pressure then she is not a good candidate to be John’s Agent. It is undeniable that she loves her husband but she may not make the best decisions in a life or death situation. Remember, it is always about the Principal’s best interests and wishes, not about the Agent’s feelings or self-interest.

Here are some important points I wish to highlight about the Health Care Proxy.

·      An Agent must be at least eighteen years of age. I would not recommend a younger person as an agent unless they have demonstrated maturity that defies their chronological age.

·      The Principal should inform the person they want to name as Agent of their decision prior to executing the actual document. The Agent can either accept or decline to act in that capacity.

·      A listed Alternate (“back up”) Agent is ALWAYS a good idea. And the same criteria I cited above for the Agent would be applicable here. Someone must be available to step in for the Agent if they become unable to serve in that capacity.

·      The Health Proxy should be for an indefinite period of time. I have rarely encountered a person who wants it to expire under a certain set of circumstances or on a specific date. How can any person know the future?

·      A Principal should always discuss their wishes with the Agent during capacity. The Health Care Proxy allows an Agent to follow a Principal’s wishes as he or she “knows them to be”—i.e. they do not need to be memorialized in the document.

·      However, the Principal is well within their right to elaborate on, limit or expand those powers within the document. The instructions can be brief or pages long. It is a highly personal document and the decisions that follow are personal as well.

·      A Health Care Proxy also addresses routine medical care, like doctors’ visits, medications, course of treatment, hospitalizations, surgical procedures and overall health. It covers all medical decisions, including “end of life.”

·       “End of life” treatment can also be explicitly addressed in the document.

  •  “End of life” includes, but is not limited to, mechanical respiration and ventilation as well as artificial nutrition and hydration, cardiopulmonary resuscitation (CPR), surgical procedures, blood transfusions, and even antibiotics.
  •   You can specify medical conditions by category and state what treatments you want or want withheld (examples of conditions are coma or an unconscious state with no chance of reversal, a terminal illness, or brain damage- like John in my hypothetical).
  • The Principal can either request that all life sustaining measures be taken or that they be withheld if a meaningful recovery is medically impossible and/or if the Principal’s diagnosis would not allow them to live a full or independent life. What a quality life means to the Principal differs for every person.
  •  The Principal must sign the document.
  • The Principal’s signature must be attested to by two witnesses who then also sign the document, but notarization is not required.
  • The witnesses have no right to read the Health Care Proxy. They are there to attest to the Principal’s state of mind as well as the voluntary nature of the document execution.
  • The Agent is never to be a witness.
  • The Health Care Proxy should be kept in a place accessible to family and emergency medical personnel; it’s location should be known to anyone who is important to you-especially your Agent. Copies should be made available to family and your physicians.

It is not a secret document.

Every person, once they reach eighteen years of age, should have a fully executed Health Care Proxy among their most personal and important documents. Your life is the most precious gift. When you are no longer able to speak for yourself, others should treat your life in accordance with your beliefs- with respect.

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This article is part of a LinkedIn Series Pilot I was invited to participate in.

If you liked this article, please “like,” comment and share with others. I would love your feedback!

If you are a subscriber to the Series, thank you.

If you aren’t a subscriber, please consider doing so to follow my Series along to to its conclusion.

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

Diving In: The Last Will and Testament

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Picture it: My office within the last couple of years

I cannot remember exactly when, but I had a consult where an adult son accompanied his mother and with full confidence and pride, told me how he had 1) drafted his mother’s Last Will and Testament, 2) signed it as a witness and 3) was also the Executor. He then showed it to me.

I sat there in complete silence.

I was also appalled.

Do you know why that situation was so problematic?

I am about to tell you by explaining what makes a “Will.” Just a caveat, there are a lot of layers when discussing “Wills.”

Lawyers have written treatises on the subject. Treatises are REALLY big books that take deep dives into different corners of a legal subject and are a reference guide for attorneys.

You will find no treatise here. Remember, this is an elemental series- and a foundation. YOU build on that.

You think you know…but a lot of you don’t

The most well-known estate planning document, by far, is the Last Will and Testament, more commonly known as “a Will.” I think many people have heard sad and downright horrible stories within and outside of their families, about the chaos that can ensue in this document’s absence.

The lack of a Will (and I will be very frank, even its existence) can bring out negative traits in an otherwise “good person,” and can create a monster from a person who already had ill intentions or frayed family ties. Either way, having a Will is far better than not having one.

Therefore, it is the document a potential client will come to me specifically requesting— and nothing else.

No estate planning or elder law attorney worth their law license would ever just draft a will for a person who has never done any type of planning. In my opinion, to do that is malpractice.

I will put this in a different context: If a person is in an accident and both of their arms and legs, all their limbs, were fractured, a physician would cast all four limbs- not just one. All limbs need protection so that bones can fuse back together properly, and the person can resume full mobility.

It is the same with attorneys. It is our responsibility to tell clients what they need, not just go along with that they think they need. More often, they do not know the importance of a document and the long-term consequences of having it versus not.

The Series will go into more detail about this, but I just wanted that point to be clear from the outset.

“Who’s Who” in a Will

Even with most people requesting a Will, many still do not understand the document and its actual function.

We will return to my non-hypothetical from the beginning as a clear example.

·      A Last Will and Testament is a testamentary document. Testamentary means it is a document that creates or transfers an interest or a right to an asset or property. NO ONE, other than the testator and an attorney, should look at this document before the Testator’s death.

  • It should be reviewed and/or revised as necessary. It cannot be utilized in any way prior to the Testator’s death. It becomes important at death.

·      The ONE person who has authority to execute a “Will” is the Testator or Testate(“Testatrix” if you want to be proper and reference a female).

·      When the Testator dies, they become the Decedent.

·      What the Decedent leaves behind in, or outside of, the Will is referred to as an Estate.

At some point after the Decedent’s death, the Will must be submitted to the local Supreme Court (in New York City) in the county where the person died for Probate.

In simple terms, and for this article, it is a judicial proceeding or process that gives a person called an Executor (more on the latter below) the power to collect all the Estate’s assets and distribute them according to the Decedent’s wishes.

The Executor was nominated and named in the Decedent’s Will.

·      Who drafts, or writes, a Will? An Attorney. More specifically, an attorney with experience. Even more explicitly, an Estate Planning and/or Elder Law Attorney who has built a practice around this area of law.

  • This is not snobbery. If a cardiologist cannot diagnose neurological conditions, then an Intellectual Property lawyer whose practice focuses almost exclusively in that area, does not have the experience or knowledge base to handle these types of matters.
  • Your son or daughter, even if they are an attorney, is not an acceptable draftsman. If they are your niece or nephew, then a BIG maybe. In my example, he was not an attorney.
  •  A Staples do it yourself “Will Kit” is not acceptable. Sorry Staples, I like buying my office supplies from you, but I would never go to you for my estate planning needs.
  • You cannot write your own Will, and your high education level or superb writing ability is irrelevant. Will drafting is more technical than creative.

·      A Testator leaves specific assets to the person or persons they name, and this class of people are generally known as Beneficiaries, or Designated Beneficiaries. Some people will use the word “heirs.”

  • A beneficiary can be a spouse, child or family member, a friend, an organization or institution.
  • In my example the son who was the Will draftsman was a beneficiary of his mother’s estate.
  • A beneficiary cannot draft a Will from which they expect to receive an inheritance. So, if your attorney nephew is a beneficiary he cannot draft it. If your favorite attorney is a beneficiary, they cannot draft it either.

NOTE: A Residuary Beneficiary is a beneficiary who is not left a specific bequest (gift/asset) in the Will. A very simple example of a specific bequest followed by a Residuary Clause is:

I leave (or give/devise/bequeath- they all mean the same thing) my primary residence, located at 123 Mockingbird Lane, New York, NY 10023 to my wife, Jane Smith.

I leave the rest, remainder and residue of my estate, both real and personal, of whatever nature and wherever situated, real or personal property, tangible or intangible, to my only daughter Joanie Smith.”

All those words are meant to cover our butts, I mean, bases. Our aim is to be thorough after all.  

·      Every Last Will and Testament execution (signing) must be witnessed. The Witnesses,two to three of them, should be non-family members or, if family members, those who are not beneficiaries listed in the Will.

  • The purpose of the witnesses is to maintain the integrity of the process. In other words, 1) attest to the testator’s sound mind- their orientation to self, time and place and 2) ensure others that the testator was not unduly influenced, under duress or pressure to sign the document when executed.
  • The witnesses will sign a Self-Proving Affidavit attesting to what I just wrote above.

·      Who carries out the Testator’s wishes? The Executor.

  • The Executor can also be a beneficiary of the Will, but it is not necessary.
  • They can be a family member or a friend.
  • They can be a trusted professional, like an attorney, a financial advisor or accountant.
  • Most importantly, they need to trustworthy people.  Executors have a very important job and what is known as a “fiduciary responsibility” or duty to the beneficiaries. They must be accountable to the beneficiaries for all the assets in the estate, answer all questions, and ensure all assets are given to the named beneficiaries, in the manner intended and that the Estate closes properly.
  • If an Executor does not do their job or if they steal from the Estate, you can have them removed.

There should ALWAYS be an alternate Executor named in the Will, in the event of the Executor’s death, illness, misconduct or deciding to step down from or discontinue the role.

What can go “in” a Will?

Almost everything.

Property: “real property” like a primary residence and other residential or commercial properties you may own.

Property: “personal property” like the objects within your home, your favorite watch, your grandmother’s china set, or your mother’s engagement ring or sentimental objects with great personal value but no great monetary one.

This category includes vehicles for the road, a vessel for the water or, why can’t it—an aircraft for flight in the skies.

Intellectual Property: music compositions or master recordings, original artwork, designs, manuscripts, your written work product or ideas etc. Anything you physically create or anything you create or own in the digital space or “cloud.” And this even includes access to your online accounts.

NOTE: There are more sophisticated techniques to protect property, but remember this Series is elemental. A Will is better than NO Will for almost any property. It’s protection. It is stated wishes, not guesswork.

I will briefly mention property that is non-probate and that can pass outside of a Court proceeding and, for some, AS LONG AS A (INSTITUTIONAL) BENEFICIARY FORM OR DESIGNATION has been completed:

·      Retirement accounts

·      Pension (plan)

·      Life Insurance

·      Property held by two people, a “joint tenancy with right of survivorship” or as “tenants by the entirety”

·      Property held in the name of a revocable or irrevocable Trust

·      Joint Savings Account (Checking accounts are not included here)

·      A bank account “held in Trust for” another person

This is your “primer” on the Last Will and Testament.

I bet you are wondering what happened to the adult son and his mother I mentioned at the beginning of this article? I told him that his mother’s bequests to him in the Last Will and Testament would not survive for the mere fact that he “drafted” a Will where he is an Executor and Beneficiary. If there were other irregularities in the Will drafting (which there were) and in the signing ceremony (which there likely were), the Will could be declared a nullity.

I never heard back from him.

You can’t help everyone, unfortunately.

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If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

 

Why I am Doing This

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A number of months ago, LinkedIn invited me to their Series “pilot,” and I began to publish my Series, “Elder and Special Needs Law in a ‘New York Minute'”

I am reproducing the Series here every week.

Super thankful to have been invited to this Series pilot. I must write that as a first sentence.

Now, I will tell you why I titled it “Elder and Special Needs Law in a New York Minute.”

I was born, raised, live and practice law in New York City. It is a fast-paced city, where people oftentimes need an answer—succinctly and quickly.

Elder and Special Needs Law is not a sexy topic, I can admit that.  However, I will strenuously argue that it is important, even vital, to every single person including…you.  If you have not been touched by these areas of law (yet), you will be and already know a person or persons who have confronted legal issues associated with aging, a special needs child or both.

Unfortunately, and all too often, people’s decision to plan is reactive, as opposed to proactive. What I mean by this is, 1) they never thought about, 2) did not want to think about, 3) did not think it was their time to think about it yet (i.e. too young), or 4) thought it was too costly to do…until they could no longer avoid it.  Fear is one contributing factor to this “procrastination,” but cultural taboos around aging, illness, money and death are others.

When they finally decide to plan, some are surprised, disappointed or frustrated to realize that waiting left them with less than desirable options. In these areas of law, time is not necessarily your friend.

The purpose of the series will be to break down these two areas of law into its components, starting with the basics of estate planning and branching out into Elder Law and then Special Needs. When people ask me what Elder Law is, I always reply that it is a “sibling” to Trusts and Estates. Like real siblings, they share important characteristics but are clearly distinct from one another. I characterize Special Needs Law as the youngest, the “baby.”

I am here to teach. I am here to impart understanding. I am here to demystify these areas of law. I do not want people to be afraid.  I promise not to overload you with information. On the contrary, I hope to assist you in creating a foundation, a foundation that is important now, no matter your age, and well into your future.  

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.