Robert’s Blog

We all have to do better.  It’s not just that most people do not have an Advance Directive, sometimes called a “Living Will”; even those that do have one, probably have done a poor job with it.  In theory, this document is supposed to tell the world our health care choices if we ever become unable to communicate them.  The reality is often much different.

Many Advance Directives are mere checklists with preprinted statements, or one-page documents from the Internet, stating in flowery terms, how much you enjoy an “active life” and, if it ever came to pass that you developed a medical condition which would severely impact your ability to enjoy life, you would like all medical treatment discontinued.  These same documents often state, “I don’t want any heroic measures taken”; no extraordinary care given”.

Can you imagine the poor doctor, nurse or family member who has to determine if what is happening to you at that particular time in the hospital, is what you were talking about it your Advance Directive?  Will they know that what the doctor is advising to have done is what you meant by “heroic measures”?   Would you consider your specific condition to result in a “serious impact” to your “quality of life”?   Is this the situation in which you wanted the ‘plug pulled’?   Would you want the responsibility of making this decision for a loved one?

The fact is that many Advance Directives are too general.   Little time is spent thinking about the issues and specifics.  Worse yet, many of us first consider these issues as we are entering a hospital and are presented with a general checklist form prepared by the hospital.  There is simply no time spent for personal consideration of our own mortality.  Yet, we have no problem leaving these decisions to others.

A major component to any “Living Will” is a healthcare proxy, or power of attorney.

Usually, in the same document, the person writing the Living Will names a person or persons to make decisions for them, if they cannot do so for themselves.  These are usually a spouse, son, or daughter.  Sometimes, all of the children are named, as co-proxy holders.  To the extent that your living will is not clear, this person or these people may make decisions for you.  This person or these people will be empowered to determine if what is specifically happening to you is a condition which you would find to be intolerable. 

There is no more weightier decision (unless of course, you made it easy for them by naming your healthcare proxy as a beneficiary of your estate).  The fact is that most healthcare proxies avoid making the decision.  They just do not know if what you wrote covers what is happening now.   If there are co-proxies, the problems are even worse.   There will be disagreement, especially among co-proxies who are siblings.  The one child, who hasn’t seen mom or dad in decades, will come in and say that  “mom is a fighter….don’t withhold treatment”.   The others will disagree.  Eventually, a decision will be made, and the siblings will never talk to each other again.   Those that made the decision will suffer guilt for years.

So, why even bother having an advance directive?  Because if you do it right, it will help you realize your wishes, and it will relieve a burden on your loved ones. 

First, understand that advance planning is a process, not a transaction or document.

Think about the issues you need to face.  If you have a medical condition, what may happen to you as a result?  Is there a family history of a medical condition?  Is there a point in treatment when you would say, “no more”?   Talk to your physician, your spouse, and your family.  Don’t forget to talk to your religious leader; many religions have doctrine in this area.    Do your homework.

Second, when writing your document, be as specific as possible.  Avoid generalizations and phrases like “extraordinary care” and “heroic measures”.  Try to keep that poor family member, nurse or doctor who has to determine what, specifically, you mean, in mind.   Feel free to give examples, or cite conditions.

Third, understand that no matter how clear you are in writing your Advance Directive, if the time comes for it to be used, the specific circumstances may not be clearly covered.  It is therefore important that you appoint a healthcare proxy.   It may seem “fair” to you to name all of your children as co-proxies.  I can guarantee you that they will not see it the same way.  Choose someone who understands your wishes and philosophy; someone who will be your advocate when you cannot speak for yourself. 

Fourth, discuss your wishes and philosophy with your proxy, and with your family.  This discussion can be difficult, but if you wait, it will only get worse.   Keep in mind that you want this document to be a gift to your family.  You want to be able to say,
“Here.  You do not have to make these decisions.  I have already made them for you.”

Give them this gift.

Finally, drafting an advance directive is not a one shot deal.  Your values and ideas will change over time.  Certainly, what you thought would be intolerable when you were thirty, may not be so intolerable when you are seventy.  What may have seemed intolerable when you were well, may not seem so intolerable when you developed a medical condition. Make the necessary changes.  Review your document before each physical exam; prior to entering the hospital; after a major medical change; and every five years. 

Some months ago the headlines spoke of the conviction of Anthony Marshall for stealing from his mother, long-time New York socialite, Brooke Astor. Prior to her death in 2004 at the age of 105, Astor suffered from Alzheimers. Her son, Marshall used this ailment as an opportunity to transfer millions of dollars to himself, for his own benefit. He even had his mother change her last will to indicate that her entire estate would be left to him.

A recent study found that up to one million older Americans may be targeted yearly for financial abuse. Family members and caregivers are the culprits in fifty-five percent of all cases.

There are various forms of Elder Abuse: physical, emotional and financial. In far too many instances, the abuser is a child. One need not be a super-rich socialite to have this happen; wealth has nothing to do with it. From what I have seen, financial abuse of an elderly person comes from that feeling of “entitlement” which is so prevalent in the present generation. Even though it is clear that mom or dad is still in need of their money (indeed, it is their money), there is a panic among the adult children to get their hands on the money before “something happens”; after all, “this money is my retirement”.

Instead of doing planning with mom or dad, and an attorney and financial advisor, or, heaven forbid, maybe doing their own financial planning and exercising a little financial self control, the son or daughter will attempt to influence the elder parent into giving him or her control over their finances. Soon, checks are written to “cash”, new home furnishings arrive and, sometimes, cars are bought. I have even seen elderly people being kept in dangerously deteriorating homes, alone, so that the cost of an assisted living facility could be saved, thus giving the child more money. Meanwhile the elder parent does not get the treatment or help they need, doesn’t eat properly, can’t take their medication as prescribed and spirals down to ill health. This is nothing more than despicable and those involved should be prosecuted to the fullest extent of the law.

Financial abuse can be very difficult to detect. Here are some signs that a loved one may be the victim of this kind of abuse:

                           . The disappearance of valuable objects

                           . Withdrawals of large amounts of money, checks made out to “cash”, or low bank          

                              balances

                           . A new “best friend” and isolation from other friends and family

                           . Large credit card transactions

                           . Signatures on checks which look different

                           . A name added to a bank account or newly formed joint accounts

                           . Indication of fear of caregivers

If you suspect someone of being financially abused, there several courses of action to take:

                           . Report the crime to your county Adult Protective Services unit, or county 

                             prosecutor’s office.

                           . Contact your attorney about your state’s elder abuse statutes, which may allow you to                              obtain restitution for breach of fiduciary duties, and other relief.

Whatever you do, do not allow an elder person to fall prey to such theft. They have a right to live in dignity and to use their money to provide for their needs, as they planned.

On this past July 4^th weekend, I heard the hymn, America the Beautiful.  One stanza has always struck me:

America! America!

God mend thine ev’ry flaw

Confirm thy soul in self-control

Thy liberty in law.

 “Self-control”? “Liberty in law”? There is a lot here that seems strange. How can liberty be found in law? Doesn’t law restrict or forbid action which, if we had liberty, we would otherwise be free to do? So much of our law, today, takes away our liberty.  And what about “self control”? Are we to impose restrictions on ourselves, so that we do not exercise our liberty, instead of passing a law? None of this makes sense.  But, the author must have had something in mind.

In present days, law, be it a statute, ordinance, regulation or case law, is seen as a method of changing the way people act. Tax regulations are enacted to “discourage” citizens from doing things which the government does not what them to do. Town ordinances are passed to require neighbors to conform to what the town council believes a home and property should appear. Some appellate courts use their authority to interpret laws to bend private actions to conform to its sense of fairness.  States seize private property in the name of the “public good”, and make no effort to compensate the owners.  The Federal government takes control of private corporations, ignoring shareholders and investors, and, perhaps, even disregarding the Contracts Clause of the Constitution.  Today, law is a negative force.  It is almost unpredictable and seems to change with the whim of whomever is in power or whatever the Conventional Wisdom is of the time.

A preacher once told me, “In Hell, there is nothing but law”.  It is one of my favorite quotes, and it must be true.  Once a law is enacted, a law begs for additional laws to support it, or to amend it.  Unintended consequences, which arise from any new law, require further modification, begetting additional laws and agency regulations.  Then, there are the court cases which further amend the laws, perhaps requiring even more laws and regulations.  Soon, as some have already argued, ordinary people become nothing more than marionettes to the passions of the group in power at a particular moment in time.

Could it be that law was once empowering? Perhaps, the reference to law and liberty, contained in the stanza of America the Beautiful, goes back to the understanding of a generation or more, before us. There seems to have been some wisdom about law, from prior generations, which we have either forgotten or rejected.  I came across this quote from John Adams:

“We have no government armed in power capable of contending with

human passions unbridled by morality and religion. Our Constitution

was made only for a religious and moral people. It is wholly inadequate

for the government of another.” 

We, as citizens, must exercise self control.  There used to be boundaries over which one would not cross.  Government power is limited.  The more we can work out ourselves, the more tolerant we are of our fellow citizens, the less law there will be; the more freedom we will have.

 The purpose of the Constitution, and its subordinate law, is to set limits on government operations, and to preserve as much decision making power for the people, alone, to exercise.  Indeed, the Tenth Amendment specifically states that all other powers, not listed in the Constitution, are left to the states or to the people. The various State constitutions are identical in this purpose.  This is what is meant by  “liberty in law”.  Law was to be the foundation of our liberty, our freedom.  Law was  to be unshakable in limiting the power of government, and recognizing the power vested to the people.  This principle was not something which could be changed with time; if it was, the very foundation of American principles of self government would perish and the law would become an unending, hellish mess, constantly growing, burdening the people, and eventually being used by the government to make war against its own people.

What John Adams was stating is that the Founders gave us a government limited in its power.

Power is vested in the people.  But, it necessarily follows that this arrangement can be destroyed by the people, themselves, if they become too emotional, too demanding, or fail to have an understanding of their responsibility under this plan of government.  Instead, the people will empower the government to do things which their community once performed.

 In previous generations, people worked for what had to be done, themselves, because they had a shared sense of morality, often given to them by religion. These beliefs required action by the community. They also had a sense of self-control, a code of conduct which all agreed would be followed.  It was stable and predictable, and it did not change with the whim of Conventional Wisdom or fashion. There was no need for much of the law because people exercised self control; they had a sense of “that wouldn’t be right” or “I couldn?t do that…”  Words like “courtesy” and “empathy” were in the forefront of people’s minds, and those who did not conform felt the community’s disapproval.

But, as Adams warned, If the people pulled back from a shared sense of moral standards and religion, and  involvement in the community, which such standards required, the government would step in and act to resolve the issues. Thereafter, the limited form of government provided by the Founders could not stand. Once the Pandora?s Box of reliance on government action was opened, there could be no end to it.  Law would then become a negative force, controlling the actions of the people.  In turn, the people would necessarily lose the freedom originally intended for them.

We are well along the path to hell on earth.

The other day, a client tried to assure me that he knew better than to put his newly signed Last Will and Testament into a safe deposit box at his bank. “When someone dies, the state freezes all bank accounts and safe deposit boxes”, he said. I smiled because I hear this statement frequently.

Fortunately, New Jersey does not freeze safe deposit boxes at death and the executor has immediate access to all safe deposit boxes.  In addition, half of all bank accounts can be withdrawn before any tax return is filed.  New Jersey has one of the most easy probate processes in the country.  (As a side bar: Our state government officials seem to have forgotten this potential infliction of turmoil and the opportunity of tax revenues because the law has remained unchanged since the 1970’s).

The problem with safe deposit boxes occurs when you are still alive and someone needs to get into it. For example: Today, you sign a Living Will or Power of Attorney and place it in your safe deposit box. The next week, you have to go to the hospital and you are asked (as required by law of the hospital), “Do you have a living will?”  “Well, yes!”, you say.  “It’s at the bank. I will have my son go and get it.”

Dutifully, your son goes to the bank and is turned away! Why?  Because the safe deposit box is in your name and you are still alive. No one is permitted access except you. Therefore, if using a safe deposit box, authorize someone else to have access to the box, as well.

Additionally, whether you use a safe deposit box or not, please tell someone outside your home where your Last Will and other important documents can be found. People have a tendency to tuck away these documents in an obscure, safe place. Consequently, when the documents are needed, no one can find them!

I once had a family come to me because their mother had died and the son was sure a will existed; however, he could not find it. Unfortunately, this family was a very angry family. Before long, the siblings were firing nasty emails to each other. One even accused the brother of deliberately hiding the will to frustrate his ability to get his retirement money, (this raises an issue for a future blog discussion). Court papers were being drafted, (and the nuclear missile launches were being readied). Then the next door neighbor and friend of the deceased mother came forward and said,  “Oh, I have the will.”  We were three months into preparing for defense proceedings when the neighbor remembered having her friend’s will.

The moral of the story is to remember that these documents were prepared for a purpose. Think of the people you have named in your documents and how not to make the work you requested of them to be frustrating and difficult.

Bob’s Blog Disclaimer: This Blog is intended to be used for discussion of the practical effect of the law in our everyday lives. Questions about why the law is written a certain way, why lawyers do the things they do, the legal process, and the like, are encouraged. Although I practice Elder Law, your questions need not be about elder care. Please: no names, no personal attacks, and no requests for legal advice.