Peace of Mind

What is peace?  Is peace a thought that the affairs of the world are ordered and in place, as they ought to be?  Consider this excerpt from Pippa’s Song, published by Robert Browning in 1841.  The last two lines graced a linen wall hanging embroidered by my great grandmother:

 

Pissarro “Hay Harvest”  (Wikimedia commons)

“The year's at the spring, And day's at the morn; Morning's at seven; The hill-side's dew-pearled;   The lark's on the wing; The snail's on the thorn; God's in his Heaven - All's right with the world!”

 

To my way of thinking, part of having “peace” is to know that things are set up, as much as possible, so that our small world – our small sphere of influence where we live – is in the best order we can make of it.  This blog post is about making things “right with the world.”   What can we do that brings us more peace in our personal lives?  

For one thing, we need to be proactive about doing things to make this happen.  Mother Theresa said, “Do your work as if everything depends on it, then leave the rest to God.”  This post is about doing your work as if everything depends on it.  Namely, do you know what will happen to your property, and to your affairs, if something were to happen to you today?   I want to urge you to create and maintain the legal documents you need to make things “right with the world” as far as your legal affairs are concerned.

People immediately think of their  will.  Do you have one? 

Under Title 62 of the S.C. Probate Code (which may or may not be similar to the probate code where you live),  what happens to your estate depends on who survives you.  Do you have a spouse, children, or parents?  The law allocates a division of assets based on who your survivors are. (For instance, if you leave a spouse or children, your parents receive nothing even if they were dependent upon you for support. If you leave children, they receive half even if you'd prefer for your spouse to receive the entire amount.)

Generally speaking, it's best if you state what you want by leaving a will.  This just eliminates doubts about what you might have wanted.  If there's something in particular that you want a person to have, that also needs to be designated specifically, but with flexibility and bearing in mind that the asset may be gone by the time you pass away. If there's an unrelated person or a charity you want to receive something from your estate, the only way to ensure that (other than giving it to them personally) is through a will. While a will doesn't have to be complicated or expensive, it is important that it be done right. For this reason, I would recommend having a lawyer draft it for you.

In terms of planning for the future, there are a couple of other documents which probably are equally, if not more, important, than a will.   Do you know what these are?   Health Care Power of Attorney, Durable Power of Attorney, Trust Documents, Life Insurance designations, Retirement Account beneficiary designations, Bank Account ownership designations, to name some. 

For an example of how important these documents are, have you considered:  What would happen to you, personally, if something were to happen where you could not speak for yourself or make decisions on your own behalf? Who would make decisions about your medical care or how you should be treated? The document governing this is called a Health Care Power of Attorney. Everyone needs one. Any one of us, no matter how healthy, could be in a car crash tomorrow and need this document to ensure that our values are known and followed. (Alternative documents are known as "advance directives" or "living will," are not quite the same things and an attorney can explain the differences to you.)

What would happen to your business matters if you were in an accident and couldn't manage your own affairs? Who would get your mail? Who would pay the bills? Who would check on some suspicious credit card transaction? The document giving some agent power to act on your behalf when you can't do so is called a Durable Power of Attorney. Everyone needs one.

Who would become owner of your bank account?  If person A is authorized to sign on your bank account, do you mean for that person to own the entire account at the time of your death?  If not (for example, if you have two children and you want them both to share the proceeds equally, not just the one who has signature authority), then you need to set up the paperwork to reflect your wishes. 

These are just some of many documents everyone should consider having. Anyone who is divorced with children and considering remarriage should think about having a prenuptial agreement drawn up. A "prenup" can settle any potential property division questions many years before issues even surface. Anyone with young children should consider designating a guardian and trustee for those children in the event of parental disability. Anyone with a business should have a business succession plan, and a partnership or close corporation should have buyout provisions.

Lawyers don't just sue people. They help ordinary people make arrangements that help their lives run more smoothly when the going gets tough. I encourage people to get a "legal checkup" every few years just to make sure they have everything they need.  

Notice: this is not legal advice. It is a suggestion that you seek legal advice concerning these issues.   Because my goal is to help people manage their affairs in such a way that they stay out of court, I do offer a service of “Legal Checkup” to help you sort out these issues.  If you are interested in a one or two hour consultation in my office for a legal checkup, please email an inquiry to PeaceWrkr@gmail.com

Another Type of "Plan B"

The New York Times this month ran an excellent article, that I recommend reading: "Overlooking the Frail Years".  This insightful piece highlights something people really need to know.:  EVERYONE needs to have a Durable Power of Attorney for Health Care and also a Durable Power of Attorney designating a General Agent who can run their affairs if they are incapacitated. 

The legal detail about Powers of Attorney is beyond the scope of this blog post.  The purpose of this post is to tell you that, even though these Powers of Attorney are some serious documents that no one should take lightly, you need to overcome whatever psychological barriers prevent you from thinking of these things, and get it done:  Everyone needs these documents in place as a "Plan B" in case fate throws its worst your way.* 

There's no need to be morbid.  Use of these things is not always a matter of high drama or life and death.  Here's an example.  I got a phone call one time from a man who had been ill for an extended period of time.  He needed advice about how to get his car back.

Get your car back? 

Yep. 

While he was in the hospital and then recovering in a rehab facility, no one made his car payment for him.  So, when he was discharged from the hospital, the first thing he learned was that his car had been repossessed.  It wasn't repossessed because he didn't have the money.  The money was sitting right there in his bank account.  The problem was, he had not given anyone legal authority to access his bank account or to pay his bills while he was incapacitated. 

The process of getting the car back was not "life and death" or "dire" or even an "emergency", but it sure was a pain in the you-know-what!  This man had to put up with the grumps at the collection agency, experienced some embarrassment in his small community, and had to pay a couple hundred dollars from his fixed income to bail out his car  (a taxi ride to the lot where the car was being held, towing and impoundment fees, and various late fees).  That's not to mention trying to fix his credit report. 

Does this sound like something you'd want to be faced with the moment YOU get out of the hospital?  Because unless you have a Durable Power of Attorney, you are not immune.  The bottom line is that everybody needs to have designated a somebody who will have authority to manage their affairs if it ever  happens that they're incapacitated.   

You may answer, "It won't happen to me."  Well, that's B.S.!   It can happen to anybody, whether you want it to or not.  You don't control whether some idiot runs the red light and crashes into your car.  The N.Y. Times article says that 2/3 of us eventually need this kind of help. 

You may answer, "I already have a Power of Attorney."  Well, that's fine. But you'd better check to make sure it's a Durable Power of Attorney.  Unless it's Durable in form, it likely expires the moment you are incapacitated, just the time when you need it.  Just today, someone told me of a family who thought their loved one had executed a Durable Power of Attorney; but when they went to exercise it, they found out that it wasn't durable.  That means the family will have to go to court in order to get authority to pay the parent's bills for them. 

You may answer, "Well, my son is on my bank account."  Well, that's fine so long as you understand that you may have just given your son the right to spend everything in your bank account on a new red corvette, if that's what he wants to do with the money.  And that if you die, he'll be entitled to all of it and won't have to share a dime of it with your daughter. 

Perhaps you're worried that someone may use these documents to pull you off of life support or to steal all of your money.  Well, these are the type of documents that you do, indeed, need to careful whose hands you put them in.  It is a big decision whom to trust with such power in your life.  You wouldn't want your worst enemy to be the person designated as your proxy under your Health Care Power of Attorney, and you wouldn't want convicted bank robber Davey "Sticky Fingers" Jones to be designated to manage your money.   However, there are a few protections. 

First of all, you control who you designate.  You will not necessarily appoint your first born son, if that person is not the best person to do the job.  What matters most for the general agency is that it be someone who can is willing and trustworthy to perform the duties, who will act rationally, who will account for the money, who will act in your best interest, and who will not steal from you.  The most important thing you can do is to choose this person wisely according to their ability to assume responsibility, not according to birth order or some other prejudice.  You may decide that the best person for this job is your second-from-the-youngest daughter or even your friend Susie the bookkeeper.   

A second limiting factor for the Power of Attorney is that these documents are, as a practical matter, only used in limited circumstances.  If you are able to make decisions on your own behalf, then you make those decisions yourself, then and there.  If you can pay your own bills, you don't need someone else to do it for you.  If you can decide whether or not you want a surgery, you don't need someone else to make that decision for you.  Nope, these documents are there only for the times when you can't take care of your own affairs.  For example, when you can't pay bills on your own, or when you are unconscious and someone has to decide whether you'd want x surgery or to be put on a ventilator (or not).  Don't appoint someone who will not respect these boundaries. 

As for Health Care Powers of Attorney, I won't repeat what I've already said in blog posts HERE (on Just Mediation blog) and HERE (on Peaceworks blog) about how important those are.  What matters most for the health care is that it be someone you can talk with about what you think you would want, what your values are.  That person should also be someone who will be there in the hospital to talk to the staff.  And they should be someone you would trust to do what you would want (not necessarily what they would decide for themselves).  Your closest friends and family are the most obvious place to look for people who would do this for you, but if there are people you would trust more, you should seriously consider naming the person you think will do the best job. 

If you do name people who would be a surprise to those who would expect to do it, however, do your family the favor of talking with them about your decisions.  You don't have to say, "I chose Jane Doe because my son Tom Smith is such an irresponsible jerk."  It's sufficient for you to tell Tom and all of your other family, "I chose Jane Doe because ___," and name the positive reasons that favor Jane.  Give your family an opportunity to voice any concerns they may have about Jane, and listen carefully to those concerns.  If Jane has been your best friend for 40 years, that's one thing.  If you met Jane last week in a Playboy Bunny Club, your family may have valid reason for concern. 

The bottom line is, work through all these issues and TAKE CARE OF BUSINESS.  Get it done!   

Okay, well, (drum roll) ...

I have both a Health Care Power of Attorney and a Durable Power of Attorney.  Do you?! 

(drum roll)  

Do you?!

If not, GET THEM! 

_______________________________________

*And now here's the disclaimer, and it's an important one:  I am not your lawyer; you are not my client; and this blog does not give specific legal advice!  Since every state and every nation has its own laws, what may be true in my state may not be true in your state or country.   I've told you my personal opinion:  you're an idiot if you don't make a contingency plan for disability. But in terms of exactly what to do, I'll leave it at telling you one thing:  Make sure you talk with your attorney about what documents you need, then take the time and effort to do whatever your lawyer recommends.   

Death Panels: A Surrealist, Paranoid Fantasy of the Christian Right

20 August 2009

Are Claims Really True That Your Request for Medical Services Under Health Care Reform May Be Reviewed (and denied) by a "Death Panel"?

 

A woman named Mary recently called into an AARP-sponsored health care "tele-town hall" with a question for President Obama.  "I have been told," Mary said, in a call recorded on NPR, that under a new health care plan, "Medicare recipients would be visited and told to decide how they wish to die." 

The foundation for Mary's fear is the fact that the health care bill contains a provision providing for doctors to discuss end of life decisions with their patients.  Right Wing Christian Fundamentalists, and the likes if Rush Limbaugh, are using this to fan flames of fear that if you slide down the slippery slope, these could possibly become death panels. I decided to investigate this claim for myself by reading the materials and the Health Care Act. 

I conclude that the claim is so outlandish that it can not be said to have any basis in reality.*  An online source defines "surrealism" as being "an anti-rational [social] movement of imaginative liberation".  The characterization of provisions of the Health Care Bill as leading to euthanasia is so irrational, imaginative, and so far liberated from any basis in fact, that it is fair to characterize it as surreal. 

As a lawyer, and as a person who takes great interest in medical ethics, I think our society needs to do a better job of discussing end-of-life decisions in advance, before it becomes a crisis.  I am offended at the suggestion that asking doctors to discuss end of life decisions with their patients, in advance of need, is the equivalent of advocating euthanasia.  To the contrary, ascertaining a person's feelings about feeding tubes, respirators, and who they would trust to make decisions on their behalf (only in they were unable to make decisions themselves) gives that person more autonomy, more opportunity to direct his or her care.  If anything, it gives more freedom and autonomy to the individual, not less. 

When a person arrives at a hospital unconscious or unable to participate in the decision process, they are placing crucial decisions in the hands of people whom they may or may not know, and whose values they may or may not share.  These circumstances can also place complete strangers in the awkward position of having to make the most personal of decisions for the patient. 

We are not talking about an ordinary emergency room admission.  In an ordinary case, the directive is clear: treat the person so they can recover and live a normal life.  But modern medicine has the capacity to go far beyond this.  Modern medicine can keep a heart pumping when the brain is dead.  Modern medicine can keep a brain alive even when the ability to breathe independently has been snuffed away by injury. Modern medicine literally has at times to ask itself the question, "am I prolonging the process of living, or am I prolonging the process of dying?"  The inquiry is laden with values and how we view ourselves. 

One of my friends declined a brain surgery that would have erased his memory, because he felt that his memory was an inseparable part of what made him the person he was.  Yet another person could, just as legitimately, choose to have the surgery even if they knew it would erase their memories and drastically change their personality. 

Yes, the patient surely ought to be a part of the decision when it comes to medical treatment.  What an advance directive does is to enlighten caregivers and providers about the patient's preferences in advance, to be used at a later time if (and only if) the patient lacks capacity to voice an opinion due to incapacity. 

Sarah Palin is just, plain WRONG:  A Health Care Power of Attorney is NOT the equivalent of euthanasia!  A doctor or lawyer who wants to discuss this with you is NOT the equivalent of a Death Panel.

Indeed, having that conversation -- with your lawyer, your doctor, your spouse -- enables you to enunciate whatever you like about your care.  Your wish may be that you want everything possible done to keep you alive, no matter how invasive, no matter what the prognosis, or no matter what the cost.  That is your personal decision.  If you have a health care proxy, you voice those wishes and your medical providers will respect it. 

Hear me on this:  EVERY PERSON READING THIS NEEDS AN ADVANCE CARE DIRECTIVE!  (If you would like to talk about your planning needs, feel free to look at my legal web site, HERE.)  

Why doesn't everyone have an advance care directive?  Beats me!  Maybe they are as irrational and ignorant on the subject as Sarah Palin seems to be.  I can understand, on one level.  Nobody likes to think of themselves as comatose or critically injured and unconscious.  Nobody finds it pleasant to think of the worst case scenarios, do we?  But in real life, all it takes is one driver talking on a cell phone to swerve into our lane, and the worst case scenario happens.

Terri Sciavo was in her 20's, healthy, and gainfully employed when she collapsed on the floor of her home with respiratory and cardiac arrest.  Fifty years ago, she would have died on the spot, but thanks to modern medical intervention her life was saved.  However, she was left in persistent vegetative state.  Her husband wanted her taken off life support so that she could be allowed to die naturally.  Her parents thought that she was conscious and aware, and they wanted everything done to prolong her life.  Her family was torn apart.  The two "sides" litigated her case in federal and state courts, and in the legislatures and the press for seven agonizing years.  If only this young healthy woman had executed an advance directive when she were able!

In my experience as a lawyer, it is very difficult to get people to face these questions head on.  Even in my own family, there are those who equate creating a will or discussing end of life issues with death itself.  Even in my own family, there are those who have procrastinated for no good reason.  It makes me want to shake them!  Do such people think that if they make no preparation for a storm that it will somehow turn the other way? 

Yes, it's hard enough to prod people to THINK about the worst case scenario types of circumstances that lead to a need for activation of a Health Care Powers of Attorney, or that would lead to probate of their Will.  Unfortunately, death is inevitable and disability is almost a near certainty, especially right at the end.  Procrastination only invites tragedy, because when a crisis actually hits, the opportunity for advance planning has slipped away.  That's when you leave your next of kin saddled with questions and doubts about whether their decisions match what you would have wanted for yourself.  Or worse, when someone you would not have chosen -- perhaps even a complete stranger -- is appointed as your guardian to make the decisions for you. 

As now, as if there weren't already enough mental barriers, the Rabid Right Wing Religious Radicals act like Chicken Little running around exclaiming that "the sky is falling," using this as an excuse to insinuate that mere discussion of these decisions is equivalent to advocating euthanasia!!!   The Chicken Littles of the world -- the extremists who view advance directives as standing on the brink of the slippery slope that leads to mass euthanasia -- argue that if government is interested in cutting costs then by definition a government-paid person will push people to sign on for voluntary euthanasia. 

This is preposterous.  What leads them to think your family doctor is signing on as a secret agent for an evil, vile government?  What kinds of villains do they think actually work in government, anyway?  Surely not people who live next door to you, who shop in your grocery store and attend your place of worship?  Surely not people whom you elected to office?  Perhaps they are thinking, instead, of people who have the same lack of morality or regard for truth that they exhibit when they make these outrageous claims. 

As a Christian I can hardly express how deeply offended I am at the far right for this sort exaggeration and fear mongering.  Indeed, it makes me almost embarrassed to refer to myself as a Christian, out of fear that I might somehow be associated with such insane viewpoints. 

I hope that everyone reading this will understand that they have a need for a HCPOA and will take time to create one if they don't already have one.  While I must insist on the disclaimer that this blog does not give legal advice and certainly does NOT create an attorney client relationship, you may CLICK HERE for a free link to a Health Care Power of Attorney form designed for use in the State of South Carolina.  (To be valid, this form MUST be filled out, then executed in front of a notary and witnessed by two witnesses.)   For a similar form for your state, Google for the term "Health Care Power of Attorney" and list your state in the google search.  Even if you do not execute a document with formality so that it is legally binding, I also suggest that you print out a copy, think in advance and express your preferences about the decisions it asks you to make, designate a person who you trust to make decisions in the event of your incapacity.  Last but not least, discuss your preferences with that person, and tell others in your family who your health care proxy is (so they know who to call in the event of a crisis and so that the person who is your proxy will know what your preferences are). 

Finally, I am not alone in my outrage about these absurd factual assertions.  The claim that the Health Care Bill would result in euthanasia has been called a "pants on fire" lie by the site Politifact, a nonpartisan fact checking service run by the St. Petersburg Times newspaper, which ascertains the truthfulness of campaign and political statements.  Politifact states:  "[A]nother statement making the rounds . . . says that health care reform would mandate counseling for seniors on how to end their lives sooner. We rated this claim Pants on Fire! The truth is that the health bill allows Medicare, for the first time, to pay for doctors' appointments for patients to discuss living wills and other end-of-life issues with their physicians. These types of appointments are completely optional, and AARP supports the measure."  

The Religious Right should be ashamed for fear mongering which takes one splinter of fact (discussion about end of life decisions) and attempts to build that into a case that the government will force euthanization of Seniors by death panels.  I will write later about what an extreme lack of faith this deliberate fear mongering demonstrates:  lack of faith in the democratic process, lack of faith in fellow men, and lack of faith in God.  I truly feel sorry for anyone with such a paranoid and limited world view.  But I am angry that they would seek to impose that view on me, by undermining the democratic process by use of a deliberate campaign of misinformation.  Let's call it what it is:  LIES. 

Have faith.  The world is not coming to an end.  But think about your preferences for care in the event you are incapacitated.  Some day, hopefully not in the near future, each of us faces the possibility that we may not be able to speak for ourselves.  Do everyone a favor, especially yourself, and execute an Advance Directive document today. 

___________

*This blog post is in reference to an article in Christianity Today as well as to articles appearing in the Washington Post.  To verify my facts I also read the pertinent provisions of the Health Care Act currently proposed before Congress. 

 

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