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.

Probate in Texas is nothing to fear!

Many people have accused me of not wanting to make money. The truth is I need to be more diligent about my billing and marketing and generally not procrastinating, but more on that in other posts. There is a positive side, however, especially for my clients. I was a computer programmer for 5 years prior to law school and a hobbyist and tinkerer for life. That instills in me a love of the most efficient and simplest solution. I believe in finding that for my clients (or even non clients if there is a solution so simple as to not need a lawyer). While people do not think of legislative codes as either efficient or simple, I am here to say the Texas Probate Code is (relative to other states and countries) both.

I have said before and will say again, Texas is a great place to live and a better place to die. The vast majority of Texas families and individuals are best served by a simple will to handle their financial affairs at their passing. No trusts. No family limited partnerships. No $5000 secret seminars with foolproof tax-free Nevada corporations. In fact, absolutely no planning is probably better than dropping a few thousand dollars on paranoia-fueled legal instruments that will do nothing at best and incur further expense and complication at worst.

Before my ethical (screw the other ones) but higher billing peers berate me (hypothetical right now as I think I have no readers), there are at least 3 broad reasons to consider a living trust or other more complex instrument (I’ll refer to this just as a trust from hereon out unless otherwise noted) in Texas:

The first is real property (meaning dirt) owned outside Texas. Texas Probate is wonderful, but Texas Probate Courts only have jurisdiction over the decedent’s personal property (wherever it may be) and real property in Texas. Real property placed in trust can avoid probate in another state.

The second is estate tax planning.  The exact $ amount for worrying about this is a moving target right now, thanks to our wonderful Congress, but if the estate is less than $4 million dollars, there is no need to consider the estate tax in your planning.

The third (and I’m cheating and combining 2, really) is having enough to fight over and being near certain estranged family, creditors, or other parties are going to come in and fight for it, or being dead set on the contents of your estate not being public record. A properly drafted trust is much more difficult to contest by non-beneficiaries than a will. This is actually a good thing. The last properly executed will is the good one, assuming the decedent had testamentary capacity when he drafted it, and we want everyone to come out of the woodwork and find that last will. The fights can be no fun (though I like em), but they ensure that all interested parties are at the table and hopefully the decedent’s intent gets done. As part of that, a will must be filed publicly to be probated, so if you do not want the contents of that will out there when you die, consider a trust.

That’s it. People have come into my office dead set on a nice expensive trust and left with their needs better served by a simple will and a couple other documents (for planning in later life, not Probate), or sometimes nothing at all. And I make less money. Dammit.