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Estate Planning Checkup Article: Creating a Letter of Instruction

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Whether you are starting from scratch or have an estate plan in place a letter of instruction (LOI) is an important part of any comprehensive plan. A letter of instruction can help your loved ones manage important information about you. A LOI conveys your desires, includes practical information about where to find various items referenced in your plan, and it can provide advice to help those you designate in managing your affairs.

Even with a new or updated estate plan, there exists a lot of information that your heirs need to know that doesn’t necessarily fit into the format of a will, trust, or other estate plan components. In the absence of this information, it is easy for those in charge to miss important items and alternatively become overwhelmed, sifting through all of the documents you left behind. All LOI’s are as different as the persons who wrote them; however, there are some standard data that every LOI should include:

  • A current list of people and their contact information to inform of your death
  • A list of beneficiaries of your estate plan
  • The locations of important documents like your will, trust, financial statements, insurance policies, deeds, and birth certificate
  • A comprehensive list of assets such as bank accounts, investment accounts, real estate holdings, insurance policies, and military benefits if applicable
  • PINs, usernames, and passwords for debit cards and online accounts
  • Usernames and passwords for social media accounts, music or information accounts
  • Keys and combinations to digital safes, strong boxes, and safety deposit boxes and their locations
  • A list of credit card accounts and any other debts
  • A list of organizations in which you belong or are a paying member such as professional organizations, boards, country or golf clubs, social or political clubs, and more
  • A current list of contact information for lawyers, brokers, tax preparers, financial planners, and insurance agents
  • Instructions for the distribution of personal items with sentimental value
  • Instructions for a memorial or funeral service
  • A personal message to family members

A note about your digital footprint: your digital world often includes music libraries, storefronts, YouTube channels, influencer social media accounts, etc. When most of us create these accounts, we blithely accepted the End User License Agreement (EULA) without much thought about when we are no longer around to manage its content and activity. A EULA designates the rights and restrictions that apply when using the software known as terms of service (TOS). Naming someone capable of managing your digital-assets and their activity is important. Most of your online accounts are not subject to typical estates planning devices like trusts and wills because they are not technically your property. Since most TOS are non-transferable, you will be unable to transfer your online accounts’ ownership legally. However, you can still make a plan for how they are handled when you die.

Once you write your letter, put it somewhere easily accessible and tell your family about it. If you do not want anyone to read the LOI until your death, seal it in an envelope. You should review your letter once a year to be sure it reflects your most current wishes and information. Because your heirs read your letter of intent upon your death, it can be difficult for you to write and have any degree of satisfaction. Final words and conveyances are sobering.

We can help you compose such a letter (as well as other estate planning documents), making sure that it compliments and does not contradict your estate plan. Remember that your LOI can bring real peace and be a source of comfort to your grieving family members. It allows them time to contemplate and connect with others to celebrate you rather than sort through documents searching for important papers. Your LOI can also alleviate potential family conflicts and stress because you specifically address personal items’ distribution. Your goal should be to ease the burden for those in charge and gain a sense of peace that you have done all you can to allow your loved ones to focus on reflecting on your life.

When you are ready to take the next step, we will be here to help.

How to Talk to Your Aging Parents About Estate Planning

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It is essential that as your parents’ age, you have conversations with them about their finances. To broach the topic, you might bring up current events like the coronavirus pandemic, its effect on economic conditions, and how it relates to the security of their financial future. The conversation should come from a calming place of love and concern. Speak to them respectfully about how the coronavirus pandemic has you thinking about the importance of their planning and preparedness.

Once you begin the conversation, move away from the pandemic as your introductory technique as you do not want to create a sense of panic or fear.  Instead, delve into legal and financial reviews, processes, and parameters. US News reports that your parents’ financial analysis should include essential legal documents, financial accounts, and associated vital contacts, long-term care decisions, and claims. If you live apart, lay the groundwork to help them with their finances remotely.

It is generally most comfortable to begin your conversation with legal documents that hopefully your parents already have in place like a will, trust, living will, and a health care proxy. If your parents do not have these documents, they must retain an attorney and create the ones that best suit their needs. If you need to help your parents manage their finances, you must have a durable power of attorney. A durable power of attorney allows you to make financial decisions for your parents in the event they become incapacitated. This is an essential estate planning document. In the absence of a durable power of attorney, the courts become involved, and solving health or financial issues becomes a lengthy, expensive process over which you have little control. If your parents already have their legal documents drawn up, find out where they keep them and review them carefully. If any documents need to be amended, suggest that your parents meet with an attorney to make the relevant changes. Be sure their documents reflect the state law in which they reside.

Once you have assessed your parents’ legal documents, it is time for some financial discovery. Even if your parents do not currently need help, having an overview of their finances and a durable power of attorney to help them in the future is crucial to their aging success. Begin by listing all of their accounts, account numbers, usernames, and passwords as well as employee contact names. Include insurance policies, the agent’s name, and where the policy is, as well as how they pay their premiums. Include any online medical accounts or list their doctors’ names and office numbers. The idea is to create a comprehensive list of all of these accounts. Gather your parents’ Medicare and Social Security numbers and their drivers’ license numbers. Know where they keep this information so that in the future you will know where to look. Also, learn about any online bill paying or automated, re-occurring activity. These usually include monthly bills like electricity, natural gas, water, etc. but may also include quarterly payments or annual subscriptions.

If your parents still live in their long-time home, discuss if it is viable that they live out their days there, or if downsizing to a retirement community or moving closer to where you live appeals to them. Help them come to a decision that is best for their set of circumstances.  If they do not have long-term care insurance or some other mechanism to aid them in times of need, talk about the topic, and try to come up with a solution. If they do have long-term care, be sure you have a copy of the policy, contact information, and the name of the insurer and agent. Review the requirements for receiving benefits so you can help them when they need to file a claim as most policies have a waiting period of 30 to 90 days before benefits begin. Know what to expect.

Digital technology has made oversight of parents and their finances easier than ever as long as you have a durable power of attorney and access to their account information. If they do not yet pay their bills online, or use auto payment, help them set up this option for their monthly bills. Remind them you will provide oversight to ensure proper billing. Offer to help them with their annual tax filings. Your help relieves some pressure on them and provides you with information about the goings-on in your parents’ accounts. For your parents’ peace of mind, you can establish a monthly video chat to let them know their bill payments are progressing normally. Your involvement will allow you to identify any abnormalities in account activity, which may indicate scam attempts.

Having these financial and planning conversations with your parents today can help them live more securely and with less stress as they age. Most parents will try to avoid these discussions with their children because they may not be adequately prepared for what can lie ahead. Conversations that focus on proper legal documents and gathering financial account information will give you the data you need to help protect your parents.

We would be happy to help you and your parents with critical planning documents. We are open and taking new clients, and we hope to talk with you soon about your particular needs.

Things You Should Know About Completing Your Estate Plan Online

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As you have probably heard by now, keeping physical distance between us is crucial to stop this virus. Call or email us to find out how we can help you complete your estate plan without taking a single step outside your safe home.

Formerly, most states required that important legal documents must be signed in person. During the course of this epidemic, then, we have been doing all we can to follow that law, to get your documents signed in person and still protect your health.

Recently, however, an increasing number of governors have issued emergency orders to change that law. Ask us whether our state is one of those that has suspended the requirements for in-person signing. If so, we can offer you the entire estate-planning process, start to finish, all completed while you stay safe at home and connected with us by internet instead.

Please consider that especially under these circumstances, it would be most wise to get your plan done. You will have made sure that trusted people can step in for you, to take care of bills and health-care decisions if you become unable. At the same time, you will have taken care of your heirs, to protect your family’s legacy as smoothly as possible when the time comes.

How quickly things change. It may be that now we can do it all by internet, to get you to the peace of mind that doesn’t change. You will know that a trusted person can pick up the reins for you, so you or your loved ones get the care you need, and you will know that your estate legacy will be preserved and protected.

Call or email us to see whether we can get the whole process done using video. There’s nothing “remote” about that.

 

Estate Planning Checkup Article: Alzheimer’s Disease

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There is currently no cure for the more than 5 million Americans who have Alzheimer’s disease. Projections by the Alzheimer’s Association (alz.org) are that by 2050 more than 14 million Americans will suffer from this disease. What can you do if you are medically diagnosed with Alzheimer’s? Aside from following the advice of your medical doctor an important step in your overall estate plan is an advanced directive to ensure your future wishes are met when you are no longer able to think or communicate clearly because of your disease progression. Having an advanced directive that accurately and legally reflects your financial and health care wishes allows you to focus on enjoying your life knowing you are doing all that you can to address your future circumstances.

You may already have advanced directives. It is a general term for various documents like a living will, instruction directive, health care power of attorney, and health care proxy. Now that Alzheimer’s disease is the 6th leading cause of death in the US, a newer advance directive specifically addressing dementia is becoming more common and is called the Alzheimer’s Disease and Dementia Mental Health Advance Directive.

An advanced dementia directive takes a comprehensive look at living with Alzheimer’s. Issues like where you will live, coping with profound changes in intimate relationships, how to finance your care, your preferred caregiver and healthcare agent, care of your pets, when you stop driving, and more. The essence of a dementia directive is to make life decisions that will span the course of time you survive with the disease. Life expectancy after a diagnosis of Alzheimer’s can range from as short as three years, with an average of eight to ten years, and as long as twenty years. Your advanced dementia directive provides you a measure of control and a sense of relief that your intentions are known when the time comes when you can no longer communicate them effectively. This document also serves as a detailed guideline for your loved ones to follow.

Some advanced dementia directives may even include an end of life strategy known as “voluntarily stopping eating and drinking” or VSED.  A VSED is considered a legitimate way to hasten death and is used in cases of terminally ill patients. Originally a VSED addressed a patient experiencing physical decline while maintaining cognitive function. In the case of Alzheimer’s, a VSED addresses the opposite issue of cognitive decline. Most people, when faced with a future of being mentally unfit in a body that will not quit, prefer to find an exit strategy they consider has a modicum of dignity. A VSED can prevent distressing situations for yourself and your family system.

Though requests for VSED are currently uncommon there is a groundswell of patient-driven need. This need says that if incapacitated through dementia, their choice is not to endure what can be a long physical decline while cognitively absent. Most people do not want life prolonged beyond the point where they are participating in it. Still, state and federal laws have to catch up to VSED as, by law, long term care facilities are required to offer daily meals with feeding assistance if necessary.

A directive that addresses Alzheimer’s disease and other forms of dementia does not replace the more standard advance health care directive. Most conventional health care directives address cardiopulmonary resuscitation, the use of ventilators, artificial hydration (intravenous fluids) and nutrition (feeding tube), participation in research and clinical trials, organ donation, comfort care, and pain relief services. Having both advanced medical and dementia directives in place not only assures you but also provides relief to your family. Your clearly defined choices can lighten the suffering your own family will feel when you can no longer communicate with or recognize them. Reconciling end of life scenarios is always challenging, but once handled, it frees you up to get on with the joy of living.

We would be happy to help you determine the correct advanced directives for your needs and desires. Please contact us if you would like to discuss this matter further.

How to Talk to Your Loved Ones About Finances and Estate Planning

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Conversations about your aging parent’s finances can be difficult but it is essential to discuss. To broach the topic, you might bring up current events like the coronavirus pandemic, its effect on economic conditions, and how it relates to the security of their financial future. The conversation should come from a calming place of love and concern. Speak to them respectfully about how the coronavirus pandemic has you thinking about the importance of their planning and preparedness.

Once you begin the conversation, move away from the pandemic as your introductory technique as you do not want to create a sense of panic or fear.  Instead, delve into legal and financial reviews, processes, and parameters. US News reports that your parents’ financial analysis should include essential legal documents, financial accounts, and associated vital contacts, long-term care decisions, and claims. If you live apart, lay the groundwork to help them with their finances remotely.

It is generally most comfortable to begin your conversation with legal documents that hopefully your parents already have in place like a will, trust, living will, and a health care proxy. If your parents do not have these documents, they must retain an attorney and create the ones that best suit their needs. If you need to help your parents manage their finances, you must have a durable power of attorney. A durable power of attorney allows you to make financial decisions for your parents in the event they become incapacitated. This is an essential estate planning document. In the absence of a durable power of attorney, the courts become involved, and solving health or financial issues becomes a lengthy, expensive process over which you have little control. If your parents already have their legal documents drawn up, find out where they keep them and review them carefully. If any documents need to be amended, suggest that your parents meet with an attorney to make the relevant changes. Be sure their documents reflect the state law in which they reside.

Once you have assessed your parents’ legal documents, it is time for some financial discovery. Even if your parents do not currently need help, having an overview of their finances and a durable power of attorney to help them in the future is crucial to their aging success. Begin by listing all of their accounts, account numbers, usernames, and passwords as well as employee contact names. Include insurance policies, the agent’s name, and where the policy is, as well as how they pay their premiums. Include any online medical accounts or list their doctors’ names and office numbers. The idea is to create a comprehensive list of all of these accounts. Gather your parents’ Medicare and Social Security numbers and their drivers’ license numbers. Know where they keep this information so that in the future you will know where to look. Also, learn about any online bill paying or automated, re-occurring activity. These usually include monthly bills like electricity, natural gas, water, etc. but may also include quarterly payments or annual subscriptions.

If your parents still live in their long-time home, discuss if it is viable that they live out their days there, or if downsizing to a retirement community or moving closer to where you live appeals to them. Help them come to a decision that is best for their set of circumstances.  If they do not have long-term care insurance or some other mechanism to aid them in times of need, talk about the topic, and try to come up with a solution. If they do have long-term care, be sure you have a copy of the policy, contact information, and the name of the insurer and agent. Review the requirements for receiving benefits so you can help them when they need to file a claim as most policies have a waiting period of 30 to 90 days before benefits begin. Know what to expect.

Digital technology has made oversight of parents and their finances easier than ever as long as you have a durable power of attorney and access to their account information. If they do not yet pay their bills online, or use auto payment, help them set up this option for their monthly bills. Remind them you will provide oversight to ensure proper billing. Offer to help them with their annual tax filings. Your help relieves some pressure on them and provides you with information about the goings-on in your parents’ accounts. For your parents’ peace of mind, you can establish a monthly video chat to let them know their bill payments are progressing normally. Your involvement will allow you to identify any abnormalities in account activity, which may indicate scam attempts.

Having these financial and planning conversations with your parents today can help them live more securely and with less stress as they age. Most parents will try to avoid these discussions with their children because they may not be adequately prepared for what can lie ahead. Conversations that focus on proper legal documents and gathering financial account information will give you the data you need to help protect your parents.

Tips You Can Utilize as a Family Caregiver During the COVID-19 Pandemic

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There are new challenges to meet for family systems with loved ones who are most vulnerable to the coronavirus yet still require caregiving. Family caregivers that use to aid their family directly, now find themselves learning how to be long-distance providers during this pandemic. US News reports that before the coronavirus, thirteen percent of Americans provided long-distance care. The new reality is that all family caregivers must employ protocols that maintain social distancing to protect their loved ones.

Technology for Caregiving

The best way to stay close from far away with ease is to employ technology in your parent’s home, making wellness checks, or using camera monitoring if they are particularly frail. Many homes are already fully alarmed with cameras and motion detectors inside and out. Sharing access codes will allow a family caregiver to visually check-in and ensure all is well. As access codes can be changed, a parent can know if the future permits, they can reassert their independence by simply changing their code. Camera systems are an incredibly valuable tool in the event you cannot reach your parent by phone.

In the absence of cameras previously installed in the care recipient’s home, solutions such as Briocare or LifePod remotely address a senior’s quality of life. Both of these solutions meet the needs of self-care, independence, and safety while allowing access to you, the remote caregiver. Briocare employs Amazon’s virtual assistant technology (smart speaker) by overlaying their mobile application (app) with customized care subgroups like dementia care, diabetes care, hypertension care, and general wellness.

Create A Caregiving Plan

Daily routines can be set, including medication reminders, family calls, emergency calls and alerts, medical device integration, and entertainment activities. Similarly, LifePod uses the capabilities of smart speakers for family caregivers to configure reminders and remotely check in with their loved ones. Telemedicine interactions with their physicians are also possible using a smart speaker. A remote appointment can provide much-needed assurance, prescription dosage changes, or determination that, despite the pandemic, medical intervention is required. Smart speaker voice-activated technology that is appropriately configured to meet your parent’s specific needs is a lifeline between remote family caregivers and their loved ones.

Essential Caregiving Needs

Beyond organizing daily activities, medical needs, and monitoring the safety of your at-home senior, there are other essential needs to address like food and finances. Restaurant food delivery services are readily available in all but the most rural of locations to provide prepared meals to your senior’s doorstep. Restaurants must meet strict guidelines for food preparation and handling to ensure safety during the coronavirus. Meanwhile, at the grocery store, personal shopping assistants can gather all the food and pharmacy needs on your list for delivery to your parent’s home.

Check with the local stores your parent prefers for instructions on how to get home delivery or check out instacart, an online food shopping service provider, that in some areas can deliver groceries in as little as an hour. Fully one-third of family caregivers are now millennials who have a comfort level leveraging technology to simplify caregiving to their family. If you are a baby boomer and are unsure about using these online food services, enlist the help of your children or a trusted friend who is comfortable with technology.

An Amazon Prime account can send packaged food goods and even connect a user to Whole Foods Market for fresh meat, fish, and produce shopping. Tips on how to save money and expeditiously choose and use food products are outlined on these sites. Read through the information provided on the website as a little planning goes a long way to purchasing efficiency and proper nutrition for your care recipient.

Financial Planning

To ensure your parent’s finances are in good order, again turn to technology. During this pandemic, many older people are rightly experiencing a lot of fear as they are primary targets of the new scams associated with the coronavirus. Even if you have never checked on your parent’s finances before, now is an excellent time to have a look. Check for unusual activity in credit card balances or credit score data. Seniors tend to accumulate many and varied account types such as investment accounts, credit and debit card accounts, business entities, real estate, and more. If you feel out of your depth in overseeing their finances, implement some online financial services.

Individualized shared platforms like EverSafe and Onist monitor all types of financial accounts and provide simple tools that let you organize, analyze, and track your loved one’s finances all in one place. Each program is customizable to grant access to family members and even financial professionals if managing monies is not your expertise. Artificial intelligence tools are designed for oversite, identifying account anomalies like unusual withdrawals, missing deposits, changes in spending habits, and will provide suspicious activity alerts to your email, text, or phone. Look for platforms with highly secure 2048-bit encryption to ensure online security.

There are many practical considerations to address when caregiving remotely for your family loved one, but using technology can solve most of them quite easily. While nothing can replace human contact, the basics of care for your parent are within reach because of the digital age.

We help families who are caring for aging parents. If you have questions or would like to discuss your family situation, please don’t hesitate to reach out.

Important Information You Should Know About Estate Planning

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Estate planning may sound like the domain of the very wealthy, however, in the eyes of the law, an estate is simply the aggregate of property an individual owns, and most everyone owns something. Property ownership includes individual as well as jointly owned bank accounts, stocks and bonds, retirement accounts, real estate, jewelry, vehicles, your online digital footprint, and even pets. Short of being utterly destitute, you have an estate, and planning for it helps to protect yourself, your family, and your loved ones.

According to Caring.com, fewer Americans than ever are engaging in estate planning. The number of adults who have a will or other types of estate planning documents has fallen nearly 25 percent since 2017. Astonishingly, the demographic of older and middle-aged adults is less likely to have wills and estate plan documents at roughly the same 25 percent rate. Additionally, a growing number of Americans lack the resources and knowledge as to how to get a will. Overall, the prevalence of estate planning documents since 2017 has shown a decrease of almost 25 percent.

In their annual survey, Caring.com posed the question to its participants as to why they have put off having estate planning documents, and increasingly people cite a lack of education or the perceived cost of estate planning as the most significant reason. Yet 60 percent of the same respondents think planning their estate is either somewhat or very important. Data shows that as a person’s income increases, their likelihood of having estate planning documents like a will, living trust, or advanced health care directives also increases. Still, the number of people with said documents continues to decrease, even in higher-income groups.

In 2020, study participants in the highest income group show a decrease of 26 percent regarding estate planning documents. Even those Americans with the resources to create a will feel it is something they can put off until later in life, which has disastrous consequences for their loved ones in the case of unexpected death.

Estate planning is the process of outlining specific instructions as to how you want your money, and other property dispersed upon your death. It includes decisions about your medical care and final arrangements as well. Wills, trusts, and advanced medical directives are the three primary estate planning documents you need to understand and put into place as soon as possible.

A will instructs how to divide up assets, debt, personal property and more. A will can cover all of your estate planning needs however, it does come with a few limitations. First, a court process called probate must be started upon death. During this sometimes lengthy process,  a judge oversees the transfer of ownership of your property according to your will. Once a probate is opened, the will becomes public knowledge, as well as the property that the deceased owns. For those who wish to avoid court or who wish to keep their affairs private, a living trust may be the best option.

The Social Security Administration and E-Signature Problems

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Electronic signature laws during the COVID-19 pandemic are playing a more significant role than ever before. The laws outlining acceptable electronic transaction standards that have the same effect as paper and ink signatures are the state Uniform Electronic Transactions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (E-SIGN).

The US Social Security Administration (SSA) is struggling to modernize its IT infrastructure to support the American people’s current and future workloads, including e-signature acceptance. There are significant and ever-increasing service requirements and data storage responsibilities. The data includes sensitive information, susceptible to hacking, on nearly every citizen in the US, whether living or deceased, including their medical and financial records. While the SSA encourages agency interaction through their various online services, the truth is the agency’s outdated and poorly integrated computer systems make modern methods of e-signature acceptance a problem.

What is an e-signature? It is quite simply a digital file or symbol that attaches to places on an electronic file or contract, guaranteeing a person’s intent to sign the file or contract. E-signing has different formats. A signer can type their name into a signature area; they can paste in a scanned version of the signer’s signature, click on the “I accept” button, or even employ cryptographic scrambling technology. The security of these e-signatures varies across the formats.

What is a digital signature? This type of signature is considered more sophisticated and secure than the e-signature counterpart. This form of signature uses digital identification to authenticate the signer, which then becomes electronically bound to the document using encryption. Programs such as DocuSign, SignNow, Adobe, and others, offer easy ways to create a digital signature securely.

The National Federation of the Blind (NFB) and four individual plaintiffs are suing the SSA for their refusal to accept electronic signatures. The advent of COVID-19 is precluding many Americans who have compromised immune systems from applying for disability benefits because their existing condition makes them especially vulnerable. The argument is that the safest way for these at-risk individuals to apply is to fill out an online application at home with an e-signature since leaving home or interacting with paper mail presents an avoidable danger.

In the case of Timothy Cole, currently being treated for non-Hodgkins lymphoma, he is unable to submit his application for disability benefits because he plans to hire an attorney to help him navigate the complicated application process. Why would hiring an attorney preclude the SSA from accepting an application for disability benefits? Ultimately Mr. Cole is unable to submit his application online because the attorney or other authorized representative must sign a paper copy of their client’s application. So even though it is allowable for Mr. Cole to e-sign his application, his attorney may not even though the SSA maintains an online application process where e-signatures are reportedly secure, accessible, and federally approved.

The lawsuit is also seeking that the court order the SSA to permit blind people to fill out their Supplemental Security Income (SSI) application online. The SSA explicitly disallows blind people from applying online for this benefit. The lawsuit further asks the court to require e-signature acceptance on paperwork when a current beneficiary is subject to a CDR or continuing disability review.

The president of the National Federation of the Blind Mark Riccobono states, “The Social Security Administration regularly interacts with hundreds of thousands of blind people and other consumers with disabilities. Yet policies like this one persist, although the SSA has both the authority and the capability to accept electronic signatures. It is both unlawful and unconscionable that this agency continues to place blind and disabled consumers at a severe disadvantage, especially during a life-threatening global pandemic. The government should innovate, not discriminate.”

Therein lies the disconnect of expected service with the SSA. While consumers are looking for innovation and ease of use, the SSA’s continued dependence on outdated technology creates a focus on the behemoth project to migrate to a relational database that can allow for hardware alternatives with greater performance and interoperability at a much lower cost. Beyond these hardware infrastructure updates, data modernization and consolidation, and application modernization must also experience updates to be user friendly. Until these updates are in place, the SSA can expect to contend with more lawsuits as e-signatures become a need rather than a want during the COVID-19 pandemic.

If you have questions or would like to discuss your particular situation, please don’t hesitate to reach out.

How COVID-19 is Influencing Seniors to Update Their Wills

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Kaiser Health News is reporting the coronavirus pandemic is prompting seniors to create or modify their living wills. Specifically, intubation is the topic that has many seniors crafting or rethinking their strategies amidst a wealth of disparate COVID-19 information that makes forming reliable conclusions for decision making, dubious at best.

Ventilators Options Seniors During COVID-19

Initial reports were suggesting that the use of a ventilator, a machine that pumps oxygen throughout a patient’s body while lying in bed, sedated, with a breathing tube down their windpipe, was showing signs of promise in severe cases of COVID-19. Yet, further into the pandemic timeline, these machines that help patients to overcome respiratory failure appear to have discouraging survival rates.

The prognosis of an older adult with COVID-19 placed on a ventilator with an underlying medical condition like lung, kidney, or heart disease is even more dismal. These older COVID-19 patients who do survive, spend considerably longer (two weeks or more) on a ventilator and tend to come out of the treatment extremely weak, deconditioned, often suffering delirium, and requiring months of rehabilitative care.

Opting Out of Ventilators

Many seniors are revising their advance health care directive to address the case of COVID-19 specifically, and they are opting out on the use of a ventilator. Joyce Edwards from St Paul, Minnesota, is unmarried and living on her own with no children spoke to the issue stating, “I have to think about what the quality of my life is going to be. Could I live independently and take care of myself, the things I value the most? There’s no spouse to take care of me or adult children. Who would step into the breach and look after me while I’m in recovery?”

Joyce’s situation is not uncommon in the United States. American seniors are more likely to live alone than ever before: the new mantra of “aging in place.” Living alone does not mean they do not have family, somewhere. Still, in the case of contracting COVID-19 and the difficulties recovery can present, many seniors prefer not to upend the lives of their younger children to prolong their own lives. Some seniors prefer to ‘go quietly into that good night’ after a life well-lived. They are conceding in writing that extraordinary measures to keep them alive are not how they wish to spend their final months, weeks, or days. It is especially true in the case of intubation, where a patient is essentially in a coma state and unable to communicate with loved ones before they might pass on.

pewresearch.org

COVID-19 Care Gray Area

Then there is the gray area of choice regarding respiratory failure due to COVID-19. While some seniors may be saying NO to a ventilator, doctors can give high-flow oxygen and antibiotics. Positive airway pressure (PAP) machines are another mode of respiratory ventilation. BiPAP and CPAP machines deliver oxygen but without the sedation required during intubation, which allows the patient to be alert, more comfortable, and have interaction with family and friends.

COVID-19 Discussions for Senior Care

Having discussions with your spouse, family, or doctor if you are alone, about COVID-19 and what to do if you contract the disease and how you might amend your living will to reflect your desires are more important than ever. Dr. Rebecca Sudore, a professor of medicine at the University of California at San Francisco, suggests directing the discussion away from using a ventilator or not, to a more general discussion of how an older adult sees their future.

The discussion should include questions about what is most important to you as an older adult. Do you treasure your independence? Or is time with your family more valuable to you? Is being able to walk and be physically capable important to you, or can you live happily with compromised lungs in a more sedentary lifestyle? Is your goal to live as long as possible? Or is it about the quality of your years on earth? In an open and calm discussion, answering these and other general questions will provide the context that will lead you to your decision about ventilators and other breathing machines.

There is a lot to think about when it comes to end-of-life wishes. We are here to help you decide what documents are appropriate to adequately express your wishes. We look forward to talking with you.

What Is the Role of a Probate Attorney?

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Whether you are the Executor or an heir of the probate estate, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Executor of a probate estate. Many Executors do not understand the probate process and leave the tasks up to the lawyer. The heirs of the estate may hear only from the lawyer or may hear the Executor say, “This is what the lawyer says we have to do.” This often raises the question, does the lawyer owe a fiduciary duty to the heirs of the estate since the Executor owes a fiduciary duty to the heirs?

The answer to that question depends on the state in which the estate is being probated. To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.

Also, before answering the question, it is helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate:

  • Duty to communicate: a duty to notify the beneficiaries the estate exists, identify the Executor, provide a copy of the inventory, provide copies of court filings, generally explain documents that require a beneficiary’s signature, etc. This duty to communicate is not the same thing as an attorney-client relationship, which means there is no attorney-client privilege and the attorney cannot give legal advice.
  • Duty to account: provide regular estate accountings, which includes explaining funds paid out of estate accounts for expenses.
  • Duty to treat all beneficiaries equal: distribute estate funds at the same time, if a question arises as to how something in the Will is to be interpreted the attorney cannot interpret it, the court must interpret it.

Turning back to the question, whether the lawyer owes a fiduciary duty the heirs of a probate estate depends on the state in which the estate is being probated. Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Executor. These states believe that since the Executor owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Executor, the duty flows from the Executor to the lawyer.

Most states, however, take the position that the lawyer does not owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the Executor to the heirs as unique from the fiduciary duty owed by the lawyer to the Executor. Also, these states want to maintain the Executor’s ability to have protected communication with the attorney.

There is a small third set of states, including California, New Mexico, and Illinois, that apply a balancing test to determine who was the actual intended beneficiary of the attorney-client relationship, the Executor or the heirs? Each state has established their own test criteria, but some common questions the courts ask include: who was the intended beneficiary of the attorney’s services, the Executor or the heirs; what was the foreseeability of the harm to the heirs as a result of the malpractice; and what was the proximity of the misconduct and the damage to the heirs?

If you are the Executor hiring the attorney, ask what the law is. If you are an heir of the estate, the lawyer should give you some guidance. If the probate estate is in one of the majority states, the first letter from the attorney should start with a sentence that reads, “I have been retained by Mr. Smith, Executor of the Estate of Ms. Smith. It is important that you understand I do not represent you.”  Otherwise, call and ask.

Everyone’s goal should be for the settling of the probate estate to go smoothly. Understanding the lawyer’s role will go a long way towards achieving that goal.

If you have questions or would like to discuss your personal situation, please don’t hesitate to reach out.