Physicians Directives, or Living Wills, are essential

Special thanks to my PR professional wife for bringing this to my attention:

More than 1 in 4 elderly need end-of-life care decisions, showing value of living wills

Associated Press/Chicago Tribune

April 1, 2010

A significant number of the elderly — more than one in four — will eventually need someone to make end-of-life decisions about their medical care, a new study suggests.

The results illustrate the value of people making their wishes known in a living will and designating someone to make treatment decisions for them, the researchers said.

In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives.

The researchers said it’s the first accounting of how many of the elderly really end up needing medical decisions made for them.

Last year, end-of-life care became embroiled in the health care reform debate. A provision in the legislation would have allowed Medicare to pay doctors for counseling patients about end-of-life issues like living wills.

Critics labeled the counseling “death panels” and the proposal was eventually dropped before the researchers could get their report out. They had pushed to complete the study because of the national debate, but it took time to get it published, said the study’s leader, Dr. Maria Silveira. She teaches at the University of Michigan and does research for Veterans Affairs.

The study is in Thursday’s New England Journal of Medicine.

The researchers concluded that advance directives — living wills and health proxies chosen to make end-of-life decisions — are “important tools for providing care in keeping with patients’ wishes.”

The use of these directives has increased in the U.S. despite debate about their effectiveness. For the past two decades, hospitals and facilities that take Medicare patients are required to provide information on them.

A living will states a person’s choices for treatment if he becomes incapacitated, but critics complain they are too vague to be helpful. A health care proxy names another person — usually a relative or friend — to make medical decisions if needed. Many people have both.

Typical decisions involve the use of breathing machines or feeding tubes or giving someone CPR.

In the study, researchers looked at how often the elderly reach the point where they can’t make their own care decisions near the end of life — usually because of dementia, a stroke or a debilitating illness. They also examined how many had living wills or a proxy and the outcome.

The study included 3,746 people age 60 and older who died between 2000 and 2006. The average age was 80.

About 30 percent needed a treatment decision made before death but couldn’t do it themselves. Of those, about two-thirds had either a living will, a proxy or both.

After the person died, relatives were interviewed to find out if the person’s wishes were followed. Most reported that they had. Nearly all the patients had wanted limited or “comfort” care; only 2 percent wanted aggressive care.

Advance directives are available for individual states online,, and an attorney isn’t needed, a popular misconception, Silveira said.

“We don’t expect perfection out of these documents,” she said. “They’re there to make a difficult situation maybe a little bit less so.”

The study’s results, while “tantalizing”, haven’t convinced Dr. Muriel Gillick of Harvard Medical School that living wills are all that useful. Ideally, older patients, along with their proxy, should discuss their medical condition, goals and treatment options with a physician — instead of just signing a form, she said.

In an editorial in the journal, Gillick said the findings nevertheless “demonstrate that talking about the goals of medical care has become acceptable to a large majority of Americans who need it most.”

An alternative, she said, is a program with a more detailed form that includes doctor’s orders for specific care — called “physician orders for life-sustaining treatment.” The program has been adopted in a few states.

One community that has embraced advanced directives is La Crosse, Wis. A citywide program grew out of the counseling experience of Bernard “Bud” Hammes at Gundersen Lutheran hospital. Hammes said he saw how distressing it was for three families who had to decide whether to continue dialysis for patients who had suffered serious strokes.

He asked them what their relative would want. “In all three cases, the family said: ‘We have no idea. We never talked about it,'” he recalled.

A program called Respecting Choices is now used by the city’s hospitals, nursing homes and other health-care providers. Today, most patients — 85 percent — have a care plan when they die, he said.,0,4828075.story

back to actual estate planning… estate planning for websites?

The primary goal of estate planning is to help your loved ones cope with your death. Of course that means stewarding money and property. It means making sure minor children you are responsible for are cared for. It means making your medical and end of life choices known. It means making your more personal wishes known, like burial plans and bequests of personal property.

With an ever-growing portion of our lives spent and stored online, it makes sense to consider what information you want your loved ones to access when you are gone, and take steps to make that information accessible. Social networking sites like Facebook and Myspace, web-based mail like Yahoo Mail and Gmail, blog sites like WordPress, or video and picture sharing sites like Flickr and Youtube may all contain essential information and valuable memories that loved ones will want access to after your death. But each of these sites have different terms of use and different policies regarding the death of a user.

These sites are password protected for a reason, of course. Some information may be private and  that’s that. But the more common reality is pictures, random emails, or a lot of other information is fine and potentially good for loved ones to see, but it is just forgotten or taken for granted that it can be accessed after death. Like everything else in estate planning, a good mental inventory and frank discussion go a long way here.

Consider creating a password repository and keeping reference to it with your estate planning documents. It can be a pen and paper list or use one of the many programs out there specifically for that purpose. of course if you use software your passwords will have a password, so keep that with your estate docs.

As the web matures legally, the terms of use for these sites may grow to include successor access designations. Honestly I just started considering this topic so I need to see if any sites are currently doing this. That would allow more complete privacy during life, not requiring the storing or divulging of passwords. Of course, a personal representative of an estate could probably work through any site’s legal department for access,  but if simple planning can avoid formal probate, take the simple planning every time.

I’ll keep poking at this, as it is an intersection of my life as a former computer programmer, current computer junkie, and lawyer. In any case I hope it puts the bug in the mind of people who otherwise thought their estate plan was complete.

the big f—in’ deal: more ruminations on the healthcare law

The highlights from my response to a concerned, conservative friend:

The bill is bad. I can’t imagine a 2000-page monstrosity that could not be.

The Rabid Right will not change the Rabid Left’s mind or vice versa. The Left screams heartless while the Right screams naive. Neither is true, and neither fixes the problem. If you insist on educating, start by eliminating the useless.

This bill does move the entrenched positions that have existed on healthcare for … 50 yrs? Obama was right to accuse the then Republican majority of doing nothing on the issue for the last 10 years. This law will not look the same in 2 yrs or 10 yrs as it does today, but people need to see the negative effects, intended and non.

What changes today? The elimination of private insurance for school loans (WTF?) Not healthcare. Maybe moving in the wrong direction, but eliminates an industry that while private seemed to just be a subsidy leach. meh.

Young people stay on parents’ insurance til 26? Scariest thing here is the federal mandate part of it – the big government element is surreal on all this. Should remain a state reg. Will definitely help people though – oddly would have saved me about 30k back in the day for a stupid lapse on my part. It is nannystate, but the argument is a lot of 26 yr olds need nannys.

I think the medicare tax bumps for higher income people ($250K+) take effect right away. That will get nixed as soon as Republicans can nix it. Pure partisian play, but this has to get paid for, even theoretically, somehow, and Dems will take a shot at the better off when they can.

Children now cannot be turned down from parent’s insurance for a pre-existing condition. Hard to argue from a compassion standpoint, but I have no idea how that works economically for the providers.

The problem with medical insurance is it is still based on the 1950’s (or 1650’s really) mutual pool idea, which was fine when everyone had a whole lot less information and we were shifting risk against the unknown. Now that healthy people opt out and insurance companies know to the dollar and day almost how long each of us will last, we need to readdress things. I like to gamble, and I don’t mind the house having an advantage, but I don’t like taking bets against modern actuaries on my health. I don’t know the answer here.

I can’t remember what else goes into effect right away. I suspect I will post more. Maybe even share links of substance.

some ruminations on the healthcare bill passing

I’ve been jawing on Facebook all day about the healthcare bill. My wife and I had a genuine dining room table discussion about it. And a random friend of a friend got me thinking – would Jesus support this bill?

Well, you can try to answer that either asking Him through prayer, which never seems to give a good facebook (now blog) outcome, or do a little historical / theological look back, which we can give a go.

Christ did like healthcare. He raised Lazarus from the dead, spat in some mud and made a blind man see, allowed some woman to be healed of hemorrhaging after she touched the hem of his garment. He healed some other fellow whose friends lowered him through the roof of the place he was speaking.

Christ also liked a good handout – water to wine at the wedding, loaves and fishes; he gave his disciples a miraculous catch after they’d had a no-luck night.

Oh Christ was not too big on rich people – he said it was easier to get a camel through the eye of a needle than for a rich man to go to heaven. He chased the money changers out of the temple. Didn’t seem to care one way or the other about taxes, though he did say give to Caesar what is Caesar’s.

The real problem here is Christ cared ( and cares) more about the spiritual world than physical suffering. The healing miracles all had a teaching context. The handouts too pointed to teaching lessons.

Oddly, the problem with this bill is it grows government and further diffuses our responsibility toward each other – I may have less of a chance to show Christian love now that more people are on the government dole. As a practical extension, Non-profit hospital systems currently receive a large part of their funding based on the uninsured they cover… how will that change? Admittedly, this is not top on Rush Limbaugh’s mind, but we are talking about Jesus. Might less people turn to the church if their needs are met by the government?

Mother Theresa alleviated an immense amount of physical suffering, but that was not the goal of her ministry. It’s just hard to teach the Gospel to the starving, so she fed them.

I wish we had not spent so much in Iraq and Afghanistan, including my cousin who died in the early months of the Iraq campaign. I’m looking forward to seeing if this bill does get our poorest out of emergency rooms and into conventional and even preventative treatment, which could save us money.  I’ve heard some of the same horror stories about people with pre-existing conditions who could not get insurance, or worse yet paid for insurance and then had it taken away when they needed it based on something they did not disclose. Christ and God seem to like justice, so maybe we will see some good there.

Obama will have at least 2 years to hone this thing with veto protection. I look forward to the loyal opposition paring it down a bit where it does not work. I hope the pendulum does not swing to far back, and we lose positive, win-win progress.

Does Jesus like this bill? Yes, probably in the same way he disliked the Holocaust. But Christ is a detail, hairs on the head, lilies in the field kinda guy. When we are at our collective worst – he hopes we pull it together, show His love to each other, and save some souls. When we are on the mountaintop, he rejoices with us, hopes we inspire each other, and save some souls.

Networking for the small business owner – free advertising

I have loved messing with computers since I was a kid with a TRS-80 Color Computer hooked up to my TV with a tape recorder drive. Prior to becoming a lawyer, I was a web programmer and database developer. I embrace technology. This has its limits, of course. I barely understand twitter and am certainly not taking advantage of it – my wife is the iphone and digital music person, not me.

There may be a purpose for search optimization companies, and for adwords with google, and for any of the many other web marketing schemes out there. But for the business owner with a tight or non-existent marketing budget, these are moot questions.

Here is my free web marketing plan that can be implemented in an afternoon, and if you are reading this, you have the skills to implement it.

  • Have a website – it can be a free single page with your address and phone number on it, free from yahoo or google or hopefully, something a little more polished.
  • get a commercial page on facebook (cost: free). These are separate from personal profiles, but you can encourage everyone you know who uses facebook to become a fan of your page. You can link a blog, website and publicize events on this page.
  • go to and make sure your business is included as a basic listing (cost:free) be sure to include business hours, if appropriate, and as much information as possible. yahoo local has an almost identical free business directory.
  • now think like a client for a second, and do a google web search for your business. notice that the google local listings show up first. Is your business there (there may be a lag as google validates the business)? If you are not but your competitor is, click on his link, see what he has done, and incorporate it into your profile.
  • look at the next listings. While they may be titled the name of a competitor, if you click on the link or just examine it, most of these links will be for other directory services, either general or industry specific. Click on the link and see what it takes to join that network – many will offer free basic listings.
  • at this point I diverge from free advertising. You may discover a well-placed directory that requires payment. I use Other business people I know swear by angie’s list. However, if you could not see this directory very quickly in the first result page of google and/or yahoo, it is not worth being paid for.

Repeat this process for both google and yahoo, exploring every link you find in the first results page (maybe into the second) for different appropriate search terms. In no more than an hour or 2, you should find at least half a dozen free places to put the word out about your business. If you know of industry specific search pages, look at those too. Each link to your site improves your original website’s natural placement in google and yahoo searches.

I’ve used this process for my own business, The Law Office of Eric J. Smith in Arlington, Texas. I also used it to help market Atomic Subs & Wings in Arlington, Texas. A quick Arlington search for probate lawyer in Arlington or buffalo wings will show the results.


behind the curtain – a guide to handwritten wills

I like magic. By magic I mean the kind performed, not Harry Potter (though I like him, too). I’m not yet even a hobbyist,  but I love to watch. I particularly love the work of Penn and Teller and those like them, who know their craft so well they will explain more common tricks.

In that theme, here is my first aid to do-it-yourself estate planners. I have mentioned handwritten wills, now I’ll give some guidelines to how to write one.

The holographic will is not fanciful science fiction – it is the legal term for a will written completely in the handwriting of the testator. Because it is all in one hand, the holographic will does not require any witnesses. For a decent novel as to what trouble that fact alone can produce, see John Grisham’s The Testament. The Will has few if any magic words required, but here’s a template:

1.  “This is my last will and testament.” – Not actually necessary, but definitely helpful. A will is ultimately defined by whether its  content meets the requirements of the Statute of Wills, but a label will help everyone, especially non-legal friends and family, know what they are looking at. Also it makes clear this is an entire will vs. a codicil, which is an update to a portion of a prior will.

2. “I revoke all other wills and codicils.” – Again not necessary but useful. The last valid will properly executed is the proper will to probate and will supercede all others, whether this language is in it or not.

3. “Upon my death, give everything to my beloved wife Betty.” – This is really it. It contains a gift (everything) and a beneficiary (Betty) and is only meant to happen upon death. This sentence alone is a valid will if signed and entirely written by the testator.

4. “If she dies before me, give everything to my son, Sonny, and my daughter, Doris, in equal shares.” – Successor beneficiaries are always a good idea.

4.5. “My ingrate son, Cletus, gets nothing. He knows why.” – Of course this is not necessary, but excluding people who would otherwise inherit if there were no will is a very good reason to have one.

5. “I name my wife, Betty, to act as my executor. She should act independently and without bond. ” – It is not required that an executor be named in the will, but you are giving your loved ones direction which is usually very helpful.

6. “If Betty cannot act as my executor, I name my son, Doris <no one commented on this slip-up… it was a doozy… son is Sonny and daughter is Doris… proper identification is very important!> as my executor, also acting independently and without bond.” – Successor executors are a good thing, too.

7. “Signed on January 21, 2010.” – Not necessary, but helpful if there are multiple wills drafted over time in determining which is the latest.

8. <Signature> – 99% certain this is required – need to confirm that. I dimly remember that a holographic will may not need to be signed since it is all in the testator’s hand, but just sign it already!

That’s it. Please note that a properly drafted will by a competent attorney, like say, me, is a better and more comprehensive document than this. This is better than nothing. Also the will above is appropriate for an older couple with adult children. Minor children can neither receive property as beneficiaries under a will nor can they act as executor. A young couple needs to include guardianship and / or contingency trust information for their minor children.

a case study for some (just a little!) estate planning

Nothing particularly tragic or soap opera like needs to happen to you to need some estate planning, consider the following happy life:

Well educated engineer has close siblings and is close to his parents, though he never marries nor has children. The engineer retires happily after a long stable career to a life of golf and other hobbies. Blessed with good genes, he celebrates his mother’s 100th birthday with his multiple surviving siblings and other extended family. Soon after, he passes away literally doing what he loves on the gold course with his siblings.

Near idyllic, right? There are problems, however. The engineer died without a will. Some of his retirement benefits had a beneficiary designation, some didn’t. So the house, all his personal property, cars, and investments not given a beneficiary designation need some form of probate to pass to the family.

But this is a man who loved his mother and siblings, so what is the problem? The problem is surviving mother, first and foremost. Under the law of intestate succession (dying without a will) in Texas, Mom will get 1/2 of the probate estate. Aside from her not needing the house, or car, or golf clubs, these assets are now available to the State to reimburse her long term care from Medicare or Medicaid.

A simple will designating the siblings or others as the beneficiaries would keep much more, if not all, of this engineer’s estate in the family.