Has the coronavirus pandemic made you think more about end-of life-planning... like advanced directives, a living will, or power of attorney? We talk about the different options, how the pandemic has impacted the process, and how to bridge these conversations with your loved ones. Read on for a list of end-of-life planning terms and resources.
Air date: Wednesday, April 29, 2020.
GUESTS:
- Donald Sienkiewicz- Attorney at Estate Preservation and Planning Law Office, located in Amherst.
- Brian Kugel - Coordinator of the Healthcare Decisions Coalition at the Foundation for Healthy Communities, where he oversees the Advanced Planning/POLST (Provider Orders for Life-Sustaining Treatment) program.
Resources:
The National Hospice and Palliative Care Organizationhas a new Coronavirus Disease 2019 (COVID-19) Shared Decision-Making Tool
The Conversation Project, a resource dedicated to helping people talk about end-of-life decisions, has a new guide for COVID-19.
TheN.H. Bar Association has a COVID-19 Legal/Regulatory Changes and You factsheet.
Emergency Order 11from Governor Sununu, which allows temporary authorty of secure remote online notorization.
Transcript:
This is a computer-generated transcript, and may contain errors.
Peter Biello:
From New Hampshire Public Radio, I'm Peter Biello in for Laura Knoy, and this is The Exchange.
Peter Biello:
As of yesterday, there have been 2010 people diagnosed with COVID 19 in New Hampshire and 60 deaths, with about 12 percent of cases resulting in hospitalization. With COVID - 19 contributing to so many deaths across across the country, it is not surprising that many of us may be thinking more about getting our affairs in order. Has the coronavirus pandemic made you think more about end of life planning, advanced directives, living wills or power of attorney? Are you updating your estate plan or having conversations with your family about it? And what questions do you have about what you should do to prepare? Give us a call now. You can also send your questions by email. With us on the program today is Donald Sienkiewicz.
Peter Biello:
He is attorney at the Estate Preservation and Planning Law Office, located in Amherst. He's with us by Skype today. And Brian Kugel, coordinator of the Health Care Decisions Coalition at the Foundation for Healthy Communities, where he oversees the advance planning initiative. Thanks to both of you for being here today.
Donald Sienkiewicz:
Really appreciate it. Pleasure. Good morning.
Peter Biello:
So obviously right now, many people may be thinking more carefully about their end of life care, especially health care workers or people who may be at high risk. Have you seen this in your work, Donald? People being more concerned about this right now?
Donald Sienkiewicz:
I've seen a little bit and I'm hearing a fair bit from my colleagues in the Boston area in southern New Hampshire about getting more calls from health care workers, specifically saying, hey, you know, I'm an E.R. nurse, I need to go to the front lines and I'm worried about doing my own end of life planning.
Peter Biello:
How about you, Brian?
Brian Kugel :
Have you seen more interest in end of life planning since the covenant here in the courts from from people in health care settings, that they are getting direct requests from patients or potential patients about advanced directives, about patients as well?
Peter Biello:
Ok. Yes. And has the COVID 19 pandemic made these conversations or your jobs in general more urgent? More complicated? How would you describe it, Brian?
Brian Kugel :
Well, it's more complicated in that the in order to set up an advanced directive, you need to have either a notary or a witness or two witnesses who are not part of the healthcare system to make the documents valid. And that's awkward right now. That's difficult given social isolation. Those are some of the kinds of questions that are coming our way.
Peter Biello:
Was that was there an order issued by the governor know that would allow video and audio conferencing for witnesses for this kind of thing?
Brian Kugel :
They governor's order, as I understand it, allows notaries to verify signature while viewing that online as opposed to needing to be in the presence of the signer. But I don't believe that it applies to two witnesses who are not notaries.
Peter Biello:
What about what about you, Donald Sienkiewicz? Was it has the COVID 19 pandemic complicated the work you've been doing or changed it somehow?
Donald Sienkiewicz:
So personally, it has not, and that's only because we've been doing zoom meetings with clients for a couple of years. The only thing different is that about six weeks ago, we stopped. We had our last face to face meeting. But I can tell you that for lawyers generally, it has complicated it in exactly the way that Brian just mentioned. So ever you do have a remote notary order. That's Governor Sununu's emergency order 11 that he put in on March 23rd that allows notaries to witness and notarized documents. And basically every estate planning document you can do can be made valid by a notary and alternatives to lay person witnesses. But the problem, the bigger problem is wills, which require to lay person witnesses to be valid. And there's a bit of a debate among US lawyers right now about whether we can do that online.
Donald Sienkiewicz:
Lots of our my colleagues are doing this by having drive by signings in their parking lots. And a lot of colleagues are are reporting on our bar association list serve that they want to go to planning for someone who is in a nursing home. But of course, they can't get into the nursing home or the hospital. So, yeah, it's a tricky thing.
Peter Biello:
Sounds complicated. Trying to get too close to people who might need the help. I wanted to talk about the two types of planning people might need to do right now. There's financial planning which will we'll talk about in depth in health care planning, which will we'll talk about this first part of the program. But, Donald, can you explain the difference between the two? I mean, why is each important? But they're important in different ways, as far as I understand.
Donald Sienkiewicz:
Well, I guess they're important because we don't know what's going to happen to you. Right? I mean, we'd all like to die peacefully in our sleep at home surrounded by our loved ones, but that doesn't always happen.
Donald Sienkiewicz:
So the health care planning, it's really important that you have a health care power of attorney or as you know, we tend to call it Massachusetts health care proxy, where you delegate while you're alive and in your right mind the authority to someone else to make health care decisions for you.
Donald Sienkiewicz:
There's also something called a living will, which is sort of a philosophical statement, which is in New Hampshire. It's part of a two part document called an advance directive. So if you're if you're quite confident you're going to die suddenly and peacefully in your sleep, you don't need one of these. But if you if there's any chance, then you really ought to do that. Health care planning, the financial planning, I suppose, you know, you ought to have a will or a trust will be really confident about what your beneficiary designations are on your life insurance policies and your retirement accounts and how your real estate is going to pass. Just to make sure that your stuff and your money goes to who you want, when you want in the manner you want. So that's how I would divide those two conceptually.
Peter Biello:
And Brian, do you have anything to add to to what Donald was saying?
Brian Kugel :
Yeah, no, it's very good description.
Peter Biello:
With respect to power of attorney, you mentioned a lot there, Donald, I wanted to sort of break them down over the course of the hour today. So power of attorney, advanced directive. These are the kind of things that you would need to have in place if you are still alive but incapacitated. You can't move your own money around, for example, or you can't make decisions about your your your your health. What what kind of medical treatment you would want. Right. Is that. Is that where you would put this kind of information?
Brian Kugel :
That's right. So that goes in the healthcare power of attorney. Well, so we call it the advance directive, which I think is a terrible and vague title. Advanced directive in New Hampshire contains the power of attorney where you say this is who gets to make decisions, including potentially pulling the plug on me if I can't make and communicate my own decisions. And it's also got this piece, The Living Will, which is sort of the one size fits all philosophical statement.
Peter Biello:
What do you mean by that philosophical statement?
Brian Kugel :
Well, the living will. That's sort of the statue to the legislature has suggested a statutory living will form that basically as a right to die kind of statement. And you don't have to have one.
Brian Kugel :
I think they became popular when hospital administrators and nursing home administrators were tearing their hair out during the Terri Schiavo case, which is back in the 80s. And there's another famous case where someone was in a coma in a nursing home for a long time. And, you know, some of the family members wanted to end their life and some other family members didn't want to end their life. And the living will is basically a statement because what we value in America most of all is individual liberty and self-determination. This is what I would want at the end of my life. But it's heavily slanted towards let me die. I'm in a coma. If my death is imminent, let me die.
Brian Kugel :
So that's important. If you had don't have a health care power of attorney, if there's nobody that that you've delegated the authority to and there's no family member or or or close person to you who can tell the hospital this is what they would have wanted done, I guess it is important to have that living will. Otherwise, the really important thing is that you have health care, power of attorney, where you if you're in a coma or if he's got advanced Alzheimer's or some kind of mental illness and you cannot make and communicate your own health care decision. This is the estate planning document that I think everybody ought to have, bar none when they turn 18. You ought to have a health care power of attorney.
Donald Sienkiewicz:
I'll jump in and endorse that statement. I think that the Living Will was historically the first advance directive that was introduced in New Hampshire later, followed by the power of attorney for health care. And under this statute, the power of attorney for health care is a more powerful document. It presumes it gives a human being the authority to figure out in real time what you would have wanted. And the law recognizes that as a stronger statement than the living will. But but you're right. If if there is no one to speak for you, it is a pretty limited, focused document that says this is what I don't give consent to if I'm dying, I say.
Peter Biello:
So a power of attorney would give a person the ability to to make decisions either based on the advance directive, the living will, or if there is not one of those in place to make the judgment that they feel is in the best interest of that person who named them the power of attorney, am I summarizing that correctly?
Brian Kugel :
Ideally, it is based on a conversation that you have with that agent that that that power of attorney, that proxy. If you are asking someone and assigning someone to act on your behalf and do what they understand you would have done if you were able to be aware of what your circumstances were. And so when we when we teach people in the healthcare sector and in the related sectors to help people to put these things in place, we really focus on having that conversation, those conversations with the person you're going to ask to be your agent. It's a terrible, terrible thing to find out in a crisis that someone you love dearly has made you responsible for making a life or death decision. And you don't haven't a clue what they would have wanted to do. You will do it and you will you will wonder for the rest of your life if you did what he or she would have wanted. So we do stress that documents are very important. But but even more important is having that understanding so that people know how to stand up for you and be your agent and be your your proxy.
Peter Biello:
We do not have a physician on the show today, but we wanted to include the perspective of a palliative care doctor who has been thinking about health care decisions of the time of covered 19. And these are excerpts from an interview with Dr. Jessica Zitter, a critical and palliative care specialist who spoke on All Things Considered last week, and she spoke about the value of an advanced directive.
News Sound:
Well, an advanced directive really is such an important thing to have, and it really helps to make sure that your preferences are honored at the end of life. And we're all sort of confronting that vision. We see it up close and personal with the COVID 19 epidemic pandemic. So, you know, covered or not. There's a time when further intervention in the hospital just isn't going to help them and actually can make things worse or increase suffering. So, you know, the default in our healthcare system is to just keep treating, keep adding on machines, connecting people to life support. Nothing. You know, this happens until someone dies. And then there's just a rising number of deaths in facilities where patients are just living on machinery. And it's really not what people say they would want in their life. So that's why planning in advance and creating an advanced directive and thinking about these things is such a critically important process. And again, I want to say. More thing, which is that the advance directive is not just a static form. It's a process of thinking about your values and thinking about how that will translate into what you want at the end of life and communicating that very important information to your loved ones who will be the ones who would have to speak for you if you can't speak for yourself.
Peter Biello:
That's Dr. Jessica Zitter, critical and palliative care specialist, speaking on All Things Considered about the value of an advance directive. We want to take some of your calls and e-mails. Give us a call if you have questions or comments about end of life planning, whether it be medical or financial. . We got this note from Nan who wrote in to say, Thank you so much for discussing end of life planning. Please remind folks that a durable power of attorney for health care is not in effect until a physician or nurse practitioner has assessed the person deemed them incapacitated and written in order activating the durable power of attorney for health care. Nam continues. I cannot tell you how many times people have waved papers in my face, stating, usually with great intensity, I am the power of attorney and expecting access to protected health information and other activities that an activated durable power of attorney for health care would have access to, such as signing care plans. I find myself doing a great deal of community education regarding incapacity, possibly being transient, and the ability of a durable power of attorney for health care to be repeatedly activated and rescinded, as opposed to incompetence that is adjudicated with the more enduring guardianship.
Peter Biello:
Thanks very much for your comments, Nan. I wanted to get insights from Donald Sienkiewicz and Brian Kugel about this. We'll start with you, Donald. What do you make of Nans comments?
Donald Sienkiewicz:
Yeah, Dan's absolutely right. I would say that the legal profession, the medical profession, speak two different languages and they always don't always translate. So on the legal side. Again, in America, what we're really mostly concerned about is individual liberty and self-determination. And so things like HIPPA other health, the Health Healthcare Information Privacy Act, not going to get the acronym exactly right, is very concerned. I think the medical profession has taken this to heart with protecting people's protecting people's information and their liberty.
Donald Sienkiewicz:
And so this is often sort of alien and surprising to loved ones, family members, even spouses who walk in and say, I've got the power of attorney. These health, your powers of attorney are typically written to be what we lawyers call springing. That is, they're not self executing like a little paper magic wand. It does require a doctor and our statutory forms as to physicians or a physician and an advanced registered nurse practitioner. I think that's a nurse with a master's degree have to have determined that you are well. So. So I'm I'm I'm getting a little bit ahead of myself, and that's sort of an end of life decision. But definitely there has to be a determination by a health care professional that you can't make and communicate your own decisions. Financial powers of attorney would tend to do a little bit differently than those in my practice I often do to be immediately effective. You be a little bit careful because it's a bit like a blank check. But that's true. There needs to be a handoff from the from the legal to the medical side. And another really interesting element of this is, is what Brian works on with these provider order or medical order for life sustaining treatment, these actual DNR orders or I suppose resuscitate orders.
Peter Biello:
Brian, did you want to weigh in?
Brian Kugel :
Again, it was it was a good comment. It's very important. Some people are frightened to say, well, I'm not ready for that. I don't need that yet. I'm fine. I have all my marbles. I understand what's going on. The fact is, if you if you complete an advance directive, it does not go into effect until the day comes when your care team understands that you don't get it. You don't understand what's going on in the health care setting. We don't want to impose anything on somebody without their endorsement, without their consent. And if if doctors, nurse practitioners are feeling that the patient doesn't fully get it, they're looking to go to somebody who does get it, who can who can make a decision on behalf of the patient that does not go into effect until that day comes. And as far as the as the person who called the person who sent the note indicated that sometimes that sometimes comes in and comes out of code. It is a good example. It's a terrible occasion, but it's a good example because if there are people who go into into a ventilator and they're put in a medical coma so that they can tolerate the ventilator during that period of time, they're not aware of anything. And so that the medical team needs somebody to speak on behalf of that patient and with if the treatment is successful and then is removed and the patient comes back to awareness, there is no longer a need for that power of attorney to be active. So it's, I think, important to realize that if you. Still something out. It doesn't mean that somebody else is entitled to make your decisions for you today only come the day that you really need that.
Peter Biello:
Ok, once you are recover, if you recover, that would be no longer in effect until such time as a similar condition arises. And in a medical professional says, OK, this needs to go into effect again.
Peter Biello:
Let's talk to Karen in Plainfield. Karen, thank you very much for calling. What's your comment?
Caller:
Oh, thank you for talking with me. I wanted to suggest something that people can do that isn't quite as legal and quite as medical. And it really just has to do with searching through your house or your computer or your notebooks for all your passwords, all your bank accounts, all your doctors names and numbers.
Peter Biello:
What's the book recommendation? Did you have book recommendations, Karen?
Caller:
Yes, I had a book recommendation. It's put out by a non-profit insurance company called Thrive. And the two books are step by step. And morning with hope so. One obviously is after somebody has died. And step by step, help prepare you for all these legal and medical paperwork. And you can collect all the information that will help your lawyers.
Peter Biello:
Well, Karen, thank you very much, really appreciate the call, so couple of book recommendations there for forgetting one's affairs in order. We got this note from Susan in Exeter who responded to our coronavirus survey. She said, I startled my daughter with an e-mail that talked about my possible death and some things that I might have forgotten to tell her. I do better writing since I have thought it out. I have all the usual things with my daughter and a lawyer. But now, if you are currently worried about dying, tell your kids what you have been thinking about until one person where all the paperwork is in your house or apartment. Get it all together in a pile and put it in one place until your child designee where it is. And be sure they know the name, address and phone number of your lawyer. It gave me a sense of relief to do that. So Brian, can I ask you about one thing in Susan's note to say? She said how one person is that? Is that a good idea just to tell one person or should more than one person be aware of this?
Brian Kugel :
I would hope that you'd tell more than one person in the going back to the advanced directed by way of illustration. There is room there to name more than one person has your agent with the presumption that the advance directive lasts forever until you change it or discontinue it and people change over time. So if I have three children and I named the one of them to be the primary agent, that person may move away, may become ill, may pass away and and without my having to do anything different. I have named a second person who would be responsible. I think the advice is very practical, to give more than one person an idea of where to look to find the things that are important.
Peter Biello:
Different question for you. Donald Sienkiewicz with respect to the advance directive. Is that where you would put things like organ donation desires or preferences?
Donald Sienkiewicz:
Yeah, sure is. And our statutory form that I think most of us lawyers use as basically three choices. You I want to authorize my agent to to donate any needed organs and or tissues. The other choices. No, I don't. Or see gas. I need to think about this. I want to make any decisions right now. And then, of course, you can be more specific than that. You can say, I don't know kidneys, but not lungs. I haven't had anyone do that yet.
Peter Biello:
Ok. So for putting together a power of attorney or advanced directive, is an attorney necessary? People may be concerned about. Oh, jeez, I don't. I don't know if I have the money to see an attorney to put this together. Is there is there a a way to do this with online online resources?
Donald Sienkiewicz:
Sure. You can download the statutory form Power of attorney for Health Care and Living Will right from the Internet. I don't recommend it. And not just because this is how I make my living.
Donald Sienkiewicz:
The statutory forms are created by legislative committees. You know, the whole sausage making process. They're full of double negatives and all sorts of very confusing stuff. The whole objection to treatment in the case of incapacity is really tricky. And the thing about somebody like me or any number of our qualified colleagues, lots of good estate planning laws in the state of New Hampshire. We do this every day. We go through these choices, we explain them. So it's worth spending a few hundred bucks to make sure that you understand the choices. But no, there's no legal requirement that you hire a lawyer. Absolutely not.
Peter Biello:
Right. Brian, do you know of a specific online resource that you would have it?
Brian Kugel :
Our organization provides that online at our Web site at the New Hampshire Foundation for Healthy Communities. And it is free. We also publish the form in a guidebook. And it's it's slightly paraphrased to way a little more toward the English language than the statute itself is. But it's true to this statute. But but I think you're right, particularly with regard to estate matters.
Brian Kugel :
I would not advise avoiding a lawyer when it comes to setting up those other contingencies for trusts and things like that, for advance directives for health care.
Brian Kugel :
We do have people in the health care setting that are that are trained to have those discussions with people to illustrate where they might be used and how they how they play out in the health care setting.
Brian Kugel :
And people often need to know that.
Peter Biello:
Listeners. We're talking today about end of life planning.
Peter Biello:
Coming up after break, we'll talk about some of the things you should think about when getting your financial house in order. Some of the things we've just been mentioning, wills, trusts, maybe even we'll talk about transfer on death designations. We'll talk about probate court. Talk about all of these things. If you have a specific question or a story about end of life care that you'd like to share. Call us now. Our phone number is one 800 eight nine two six four seven seven. That's one 800 eight nine to NHP. You can also e-mail exchange at NHP Bar Dot work. This is The Exchange. I'm Peter Biello. We'll be right back.
Peter Biello:
This is The Exchange. I'm Peter Biello, and today we're talking about end of life planning. The coronavirus pandemic has brought our mortality into focus. So we're speaking with some knowledgeable people today about best practices when it comes to getting your affairs in order. What questions do you have about end of life planning? How did you have these conversations with your loved ones?
Peter Biello:
We'll spend some time in this part of the program talking about financial planning. With me today are Donald Sienkiewicz, attorney at the Estate Preservation and Planning Law Office located in Amherst, is with us by Skype. And Brian Kugel, coordinator for the Health Care Decisions Coalition at the Foundation for Healthy Communities, where he oversees the Advanced Planning Initiative. Donald, when it comes to finances, what's the most basic thing a person can do to ensure that when they die, the financial process goes smoothly?
Donald Sienkiewicz:
Go see a lawyer who specializes in this. It's very confusing. I get I get really common questions. People come in, they say, I think I need to do a will. And, you know, half an hour into the consultation process, it becomes very clear they don't realize that, for example, the will does not trump their beneficiary designations on their life insurance. They're not even thinking about their employer sponsored group. Term life insurance doesn't trump the beneficiary designations on their retirement accounts unless those fail because the beneficiary is also dead. This stuff is really complicated. I did commercial real estate for seven or eight years before I got into trusts in the States. I got into trust in states accidentally because I lost my job in the last Great Recession and I realized even as a lawyer, I didn't understand this stuff and it took me a long time to feel competent. So, you know, sorry, another plug for lawyers. That's that's what I'm going to give you.
Peter Biello:
Ok. So so see a lawyer because it can get pretty complicated. Same question to you, Brian. What would be the most basic thing you would advise?
Brian Kugel :
Well, I would have the same advice. You should see a lawyer to get your your financial affairs in order, estate law is complicated. We are asked since we provide an advanced directive forms and guidance to people in health care center. Do you have a form for, you know, to to name a power of attorney for my estate? And we said no. That's very complicated stuff.
Peter Biello:
Let me ask you about the will question, because my understanding of wills is that, yes, even though it doesn't change the designation of your life insurance beneficiary, for example, it would speed things up in probate court for whatever assets do have to go through probate court because a will, generally speaking, will designate a a personal representative for the estate or an executor for the estate who is essentially make all the decisions for the estate to be financially responsible for it, for settling debts and whatnot. Is that a good thing to have in place, if nothing else, in a will, just a designation of an executor of the estate, Donald?
Donald Sienkiewicz:
Yeah, absolutely. I mean, if you do a will with a lawyer or with an online service, it's going to make you designate an executor or someone who executes or carries out your instructions is going to nominate them. Only the probate court can actually invest them with authority. So Will is a ticket to a probate court experience. Will it speed it up, having a will? Maybe, maybe not. If you in all 50 states we've got these rules for someone dies intestate. That is without a will and testament. And, you know, so there's sort of these and Solomon split the baby kind of rules like, did the guy die with a spouse? Did the guy die with kids? And they sort of had these arbitrary fractions. You really don't want the state to determine who gets what under the intestacy statute. So Will says basically, here's who carries out her X keys, my instructions and here's who gets what. And if you've got minor kids or disabled kids, that's also the place where traditionally we nominate a guardian for them. But it's really important to recognize that almost every different kind of asset has a different rule for how it transfers. It's been a sea change, probably the last generation about financial assets being able to be transferred on death, registered, transferred on death to somebody else. That avoids the probate process.
Peter Biello:
That can be for bank accounts and, you know, online brokerage accounts, things like that. You can go to the bank and just say, hey, I want this account when I die to go to X person.
Donald Sienkiewicz:
Right. So you could have 10 million dollars in a Schwab or Fidelity account. And if it's transfer on death to your kid, that's all they're gonna have to do is positively identify themself by sending in a death certificate to Schwab or Fidelity or Vanguard or whoever, and they're gonna get the money. No lawyer's going to pay any attention. So that's fine. And that may be absolutely appropriate. But the problem is what the big take away I'd like people to take away from the show is that you want to work with someone who understands the whole process and how each one of your assets is going to transfer, because it's way more complex than just I'm going to do a will.
Peter Biello:
Brian, agree. It's way more complex than just writing a will?
Brian Kugel :
Yeah, as a consumer, I'd say yes.
Peter Biello:
As a consumer rather than as someone who works professionally in this.
Brian Kugel :
Well, as a person who works professionally, we we do see that it's complex and people do need guidance and advice from from people who know the laws.
Peter Biello:
Ok. And we spent the first part of the program talking a little bit about health care planning and financial planning. To what extent do these overlap, Brian?
Brian Kugel :
Well, a good portion of people who have advanced directives for health care have have have them because they were raised in the course of estate planning. So many of those are are generated in lawyers offices. And that's very good. We want to. We have an interest in seeing that you or anybody has what you want and has your consent or has your guidance expressed either through a document or through some other human being be assigned or we don't want to do is to know what you want and to make sure that the health care system is set up to follow it. So we do have people, though, that will change, not wills, but advance directives change, people's circumstances change, their views change and so on. A lot of them are done outside of a tour attorney's offices. However, the financial things really should be done with the help of an attorney.
Peter Biello:
Listeners, if you've got questions about financial planning for end of life care or anything like that, give us a call. We'd love to get your question answered. If you also have a story that you think other listeners may benefit from hearing from. So give us a call to tell us that story.
Peter Biello:
We heard from Walter in Portsmouth who says, My father created a will trust advance directive and medical power of attorney. Then he got dementia. He did not have anyone with a financial power of attorney, which caused big problems for dealing with income outside of the trust. So a financial power of attorney in Walter's case, that would be like them.
Peter Biello:
Medical power of attorney. Where It is in effect. So long as the person it is for is alive but incapacitated in some way. Am I describing that correctly, Donald?
Donald Sienkiewicz:
That's correct. I sort of think of three possible states right, alive and in your right mind, alive and not in your right mind and dead will only works the minute you die. Powers of attorney, both health care and financial work while you're alive but mentally incapacitated. And a trust works both when you're alive or if you are alive and incapacitated and also after you die. One reason is love trusts. They're very flexible. And I would suspect that one of the problems with Walter's father was that the trust was fully flush. Not everything was in the trust and if all the assets had been in the trust. The successor trustee, whoever was named after Walter's father, would have had pretty instant access and control to those assets.
Peter Biello:
I see we've got this question from Liz in Pelham who who wrote writes, My husband and I live in New Hampshire. He works in New Hampshire. I work in Massachusetts. But we seek all of our health care in Massachusetts. What documents translate across state lines? If we had to seek health care in New Hampshire, do we need separate health care proxy forms specific to New Hampshire?
Brian Kugel :
I'll have a go at this one.
Brian Kugel :
The law in New Hampshire says that we will recognize health care proxies, powers of attorney executed in another state, provided there they meet our requirements. And there's a devil in that detail because some of the the particulars in the New Hampshire statute are different from any other state. And that's true of every state. Every state writes their own statute. And what I have an interest in, I think everybody has an interest in seeing happen is that whatever you do, it's understood it works. The people that it instructs know what to do with it and how to be instructed. So even though technically a Massachusetts statute, the Massachusetts document would be recognized in New Hampshire and practically people here would try to honor it, they would try to figure it out. But I want to make sure that you put that tennis ball right on the other guy's racket when it crosses the net and so that there is less confusion. The worst thing that can happen is people say, I'm not sure what to do. Let's do what we normally do and figure it out later. And what we normally do in the health care setting may or may not be what you want. So it's in your interest. If you and many people do this, many people get some care in New Hampshire. They get specialty care in Massachusetts. There are people in every state who live in borders, the Connecticut River and in Vermont as an example here. It's worth your while to do a form in New Hampshire. Again, you may have done part of the state planning in one state, but it's inexpensive. It's free to do the health care proxy, a duplicate of that. It's important to make sure they say the same things.
Peter Biello:
Let's talk to Robyn in North Conway. Robin, thank you very much for calling. What's your question or comment?
Caller:
Thank you for taking my call. Great subject. I got a question on we did all our health care proxy, durable power of attorney for health care. The dementia paperwork. And what if a partner is starting to show signs of possible dementia? You know, people are talking to me about revokable and irrevocable trust. I was wondering, you know, what your thoughts are on that.
Peter Biello:
So question about dementia as it relates to revocable and irrevocable trusts. Robin, thank you very much for the call.
Peter Biello:
Maybe before we get into the details of how dementia might affect that, Donald, can you explain what revocable and irrevocable trusts are?
Donald Sienkiewicz:
So this is a simplistic way of dividing the world trusts into two revocable trusts. When you create them, you can change them. You can revoke them. You can tear them up entirely. I think of a trust as a bucket with rules carved on the sides. So you can also just change the rules slightly. You know, this kid didn't send me a Christmas card, so they only get 40 percent instead of 50 percent. You can put stuff into the bucket. You can take stuff out of the bucket. Very flexible. They're great tools for just making things easy for your loved ones and cheap for your loved ones when you pass away or lose mental capacity. They don't protect you against people you owe money to. And the person or institution that most of us, people who aren't in high risk professions are likely to owe money to is a nursing home at the end of life. And so these irrevocable trusts are trusts where you build the bucket by signing a document, you carve the rules on the side. Then you say, as soon as I sign this, I hereby give up the right to change the rules. And whatever you put in that bucket, if it passes this five year look for for Medicaid, then it is safe from being used to pay for your nursing homes. And that's a very specialized, powerful tool in the hands of people who understand how to use them. And so those kind of irrevocable trusts that you can't change the rules. Those will protect the assets inside for your kids or whoever your loved ones against people potentially that you owe money to.
Peter Biello:
And so Robin's question had to do in part on someone's showing signs of dementia. So if they don't have dementia yet, but they it might be coming. And so to protect assets, to what extent would a trust be be a tool in that case?
Donald Sienkiewicz:
Well, I hope this is responsive. The the early the earlier someone does planning, the better the chance that assets will be protected. That is, if you've already got dementia, you may be it may be too late for you to do any planning. Probably, you know, if you've got a spouse, they may be able to do some emergency planning. But this is this kind of plan. Everything we're talking about on the show is far better done. The earlier, the better. It's possible to do some some irrevocable trust in other Medicaid planning when someone has gotten a diagnosis of dementia. And it's pretty interesting. Legally, you can make or change in a state plan even if you have been diagnosed with dementia. But you have to know what you're doing at the time that you go see the lawyer or make the state plan. And that can get tricky, especially if after you die, people aren't happy with the estate plan and they challenge it.
Peter Biello:
Is that something you've seen, Brian, challenges to to a state, plans after they've been drawn up by people who aren't happy with what's in there?
Brian Kugel :
It's rare. I don't see so much. The estate plan is as the the authority that's in the power of attorney for health care. It's rare that it's contested. But but we do train people and warn people to be extremely careful to make sure that that when someone is executing an advanced care plan and an advance directive that they are capable of doing that, that they do have capacity. The question about dementia is very, very challenging. And because dementia is a very gradual, insidious illness. And I'm going back to what Donald said very much earlier in the program. Our culture, our society is based on and our law is based on the premise that people have individual freedom and abilities to choose things and our laws and our culture very reluctant to remove that from people. So with dementia, which progresses from very, very subtle to very profound. At what point is it fair to say that the individual should no longer be making this or that decision? And that is very tricky ground. I can if if I am in the early stages of dementia, I can make errors in judgment. I can spend money on things I didn't used to spend money on. Does that give the rest of society the prerogative to take my take, my choosing ability away from me? It's a question of when. Certainly some doctors are very reluctant to to remove somebodies compassion capacity, declare somebody incapable of making medical decisions. And even when they do, doctors, nurse practitioners, healthcare providers do include that patient in the discussion, even if even knowing that they don't fully understand it. So it's a gradual thing and there is room for error.
Brian Kugel :
So there is room for for worry.
Peter Biello:
Well, it seems like it might be worth contacting an attorney for any specific case. Robyn, thank you very much for the call. Really appreciate that. We've got a quick question from a caller who couldn't stay on the line but wanted to know if the power of attorney needs to be one person or could it be a majority? The person who called had three children and wonders if all three could vote on decisions and spell out the majority, two out of three, in favor of a decision that the decision would go forward. Would that work, Brian?
Brian Kugel :
The law is weighted toward clarifying one individual. You can specify, I want all three. We advise against it simply because in real time, you may not be able to find all three and the decision may not wait. But what we often guide people to do and encourage people to do is is name all three as a primary and then alternate agents and include in in the form which there is space for this to encourage those three to consult with one another about any important decision.
Peter Biello:
We've we're going to take a quick break.
Peter Biello:
But when we come back, we'll continue our discussion on some of these financial issues. We'll talk also a little bit about what it's like to start this conversation. That can be an emotional kind of sad moment to have to have this conversation. But as we've been hearing on the program, it seems wise to plan as many of these details in advance as possible. Put the ball right on the person's racket, so to speak.I'm Peter Biello. We'll be right back.
Peter Biello:
This is The Exchange on NHPR. I'm Peter Biello. And as of this morning, nearly 60000 people have died nationwide from COVID 19. With that number growing daily, it's hard not to think about how vulnerable the human body is and consequently what to do to prepare for a scenario when you or a family member becomes critically ill. We're talking with our guests today about end of life planning, medical, financial. And in this part of the program, we're going to talk about having the conversation with loved ones about end of life planning, planning your own or theirs. With me on the program today, Donald Sienkiewicz. He is attorney at the Estate Preservation and Planning Law Office located in Amherst. He's on Skype. And Brian Kugel, coordinator for the Health Care Decisions Coalition at the Foundation for Healthy Communities. We're still getting questions about finances. It's a tricky, tricky part of the end of life decision making process. So Dennis from Stewartstown, he wanted to know about gifting before death instead of putting it all in a will. Donald, what do you make of that? Giving your assets away to loved ones, family members before death to avoid any kind of after death transfer problems?
Donald Sienkiewicz:
Sure. It's great to be generous. You should see a lawyer and talk about your specific circumstances. You know, people get people get confused about this, too, so you can give 15000 bucks a year to anybody, any individual on the planet without telling the IRS about it.
Donald Sienkiewicz:
You'd probably give a lot more than that without paying any tax on it, given the gift and estate tax threshold like eleven point four million bucks a person. That's very different from the Medicaid rules and the five year look back and you need to be really careful. Medicaid and long term care planning is the 800 pound gorilla in any everybody's a plan. But sure, generically, it's it's you can give stuff away. You don't have to wait until you die. But you should really talk to a lawyer who specializes in this kind of practice. A great resource, by the way, is NAELA the National Academy of Elder Law attorneys. I would not advise going to the local lawyer who does a little divorce, a little real estate. I discovered when I got into this area 10 years ago that you can get over your head in the deep end of the pool very quickly. So NAELA is a great resource for finding lawyers who've made a commitment to this area of practice.
Peter Biello:
We'll make sure we can put links up to the resources you mentioned at our Web site, NHPR.org. So listeners can check that out at the end of the program. John in Goffstown wrote in to say, My father did not plan well and it was a nightmare at the end of his life. Since drawing up all these legal papers last minute, it was almost was almost questionable. The medical and financial powers of attorney took some time to execute and caused many problems. The probate process was long and complicated. On the other hand, my mother had planned well in the whole process from financial and medical proceeds will and probate went smoothly. My wife and I had our legal documents drawn up immediately following the debacle of my father's passing. That's the comment from from him. And we also have Jody in Merrimack who wrote in and said, after a couple of unexpected deaths in our extended family, we held a morbid dinner party. The purpose was to get our three generations together and go through the advanced directive paperwork and fill it out together. So that was one way of starting the conversation. Thank you very much for that comment. Jodi, really appreciate it. Let's talk now with Meredith in Concord. Meredith, thank you very much for calling. What's what's your question or comment?
Caller:
Thank you so much. This is such an important conversation. And I love the dinner party suggestion. I have a lawyer friend who once said to me, if you don't make a plan, someone else is going to have to do it for you. And unfortunately, that's not compelling for some people to make a plan. And I just wonder if if the experts have any advice, you know, how how do you get someone to be comfortable talking about this and to really realize the position that they put, you know, probably their children in if they just completely refuse to engage in this topic. Thank you.
Peter Biello:
Thanks very much for the call, Meredith. What do you think? Maybe start with you, Donald.
Donald Sienkiewicz:
It's tough, I would say, look, mom, dad, I love you. I care about you. I want to have this conversation. Are you willing to have this conversation? I think actually there's some links on the show, Web site. Back in 2013 and 2014, somebody started calling it the conversation capital T, capital C. This conversation about end of life, which, of course, in America where we sort of idolize youth and vitality and we're absolutely phobic about aging disease and death. It's often a tricky conversation. But I would just say, look, I love you. Can we have this conversation?
Peter Biello:
Same with you, Brian. Have you seen stories of this in your line of work, people trying to convince family members?
Brian Kugel :
I'll add that the conversation project that that is a very useful tool kit and resource. It's a it's a discussion people don't want to have. We do want to. We do want to assume we'll always live. It can ruin a Thanksgiving dinner to bring it up. You know, on the other hand. I've spent a lot of time wishing that there was an easy way to get people to engage in this discussion. And they say, be careful what you wish for because we do have a world wide crisis now. OK. And all of a sudden the possibilities, the illustration become becomes easy to imagine. OK. And so this may be an opportunity which we spend a lot of time on the phone because we're in the house a lot with people. We love checking in. And it may be it may be more possible in this dark time to engage in this this kind of sad discussion, this kind of important but serious and solemn discussion to say, I love your mom, I love you, dad, or to your kids. If anything happens, I will. You know, you've said you'd be willing to speak for me. These are the things that I would say. These are the ways I feel about it right now. And those are really, really important discussions.
Peter Biello:
Let's talk to Jeff in Concord. Jeff, thank you very much for calling. What's on your mind?
Caller:
I'm trying to get my will done now, but I'm afraid to go and meet with a lawyer, a person. And I'm I am concerned about using the online will services. Is there a way for a lawyer to help me do my will safely? Remotely.
Peter Biello:
Donald Bryan, who wants this question?
Donald Sienkiewicz:
I'll take it. So sure I should note that Jeff and I are friends. Jeff, you got to call me and pay me to do your will. I mean, that's the answer. So they're all lawyers all over the country being very creative. They're having drive through signings where paralegals, witnesses are standing in parking lots. We do it all video. As long as you've got a smartphone and a laptop or something with a camera, smartphone and a decent Internet connection. We can do estate planning for anybody in the Commonwealth of Massachusetts or New Hampshire or the states that I'm licensed in. And I meet with clients when we're not in COVID 19 in Peterborough. Phil Runyon's law office where I'm a partner and recently at Paul Pike's office up in Wolfeboro. There are lots of great lawyers. I think the big, big issue is people are scared to lawyers. I think lawyers are expensive and they're going to bite. Really, most of us are pretty nice people. We were people before we went to law school. When we retire, we'll be people again. I got a bunch of videos on my Web site, and you can show mom some of the videos and say, look, this guy seems like a down to earth person. He won't bite. But the first thing to do is just pick up the phone and make an appointment with a lawyer.
Donald Sienkiewicz:
And most lawyers will have video appointments, phone appointments now asking asking people to sort of, hey, overcome your fear, get over it.
Peter Biello:
I mean, that's that's tough, right?
Peter Biello:
I mean, some people just really don't want to interact with people right now either. And some people may be, as you mentioned, just wary of lawyers in general. So what about for people who can't do what you recommend or really just don't want to and aren't going to muster the strength to do it your way? Is there a different way to do it, Donald?
Donald Sienkiewicz:
There are any number of online will services. And my, so they use artificial intelligence to say, hey, what's your name? Who you're married to? Who do you want to get your stuff? Would you want to be your executor? The first problem is if that spits out a will for you can print it out. You still have to find two witnesses to sign that will for it to be legally enforceable. Otherwise, the court's not going to honor that. So you and the other thing, I'll just repeat what I've said two or three times before is this stuff is more complicated than than getting a document online or even going through one of these artificial intelligence services. So, yeah, you can do it without talking to a lawyer if you're too afraid of talking to a professional, do you think. I really don't have the money. I think I'd rather talk to a lawyer and then find out how much it's going to cost and then decide whether to use a lawyer or not.
Peter Biello:
With respect to starting the conversation with family members about end of life decisions, we get this note from Shirley in Nashua. She writes, My mother started the conversation about end of life by sending me a card with a photo of her new tombstone. The card said, See you. Don't worry about this. She gave me no warning. So that's the approach from Shirley, Shirley's mom, Shirley, in Nashua. That's a creative way to tell people, hey, I'm taking care of stuff.
Peter Biello:
That's something you've heard of before. People sort of seems like there might be a sense of humor.
Brian Kugel :
And I think that's probably important. But there may be gentler ways to do it. It is always a challenge when you ask when you try to figure out how do I get somebody else to do something I want them to do.
Brian Kugel :
This is certainly worth pursuing. It's certainly worth engaging. But there are a million different answers, not all of which are successful. It depends on the people.
Peter Biello:
It depends on the people, certainly. We got this note from Bill in Concord. He said, I ran into this when my little brother died unexpectedly a few years ago. He had no will. He had been estranged from my father for many years as dad considered his lifestyle a choice and a sin. Because I was the relative living closest to my brother, I became the executor of his estate. I had to wade through his assets and debts with the help of a lawyer. I had to find on short notice because he had no will after the probe. After all the probate cleared, I had to hand over all the assets to my father, who promptly donated the money to organizations that advocated for causes that my brother would never have supported. My wife and I learned from this lesson and spent the time and money to make sure we had a will and health care directives in place. We look at over every few years to make sure it's all up to date. I now know for sure that our state will be handled the way we want. So. Seems like a cautionary tale from from Bill Brian, about, hey, if you don't if you don't spell things out the way you want to, you. All your all your material possessions may go toward something that you really don't want them to go toward.
Brian Kugel :
Again, speaking from the health care side. The thing we would like most is for every adult to have at least considered whether they want to have an advanced medical directive. Yes, 20 year olds don't pass away as frequently as 70 year olds, but they do pass away. They do end up in comas. They do end up in unforeseen crises. And it's for everyone who loves them. We would want to see that they have considered and instructed us how to handle that. And so it is a challenge because young people live forever. At least they think they do. And so we do want to see people consider this.
Peter Biello:
Let's talk to Michelle in Plymouth. Michelle, thank you very much for calling. What's on your mind?
Caller:
Hi. Thank you for taking my call. I guess I'm just kind of curious what your advice is for, like the nontraditional household. We've talked a little bit about traditional households of mom and dad and having kids and, you know, the advice to give to kids. What about families who don't have kids and or just the nontraditional families instead of having a conversation with my dad? What about a conversation with mom and mom or dad and dad or families who chose or can't have kids?
Caller:
What's your advice for who they should be talking to instead of just traditional families?
Peter Biello:
Thanks, Michelle. Appreciate the call. What do you think, Brian?
Brian Kugel :
Family is how you define your family to be OK. They can be traditional relationships. They can be nontraditional relationships. They can be unofficial relationships. They can who I would choose to be my to be my health care agent might be a family member. It might be a friend. It it might be somebody in my church. It depends on my life circumstances. The law allows and the health care system seeks the person or persons that you have in mind to speak on your behalf.
Donald Sienkiewicz:
Donald, anything to add to that?
Donald Sienkiewicz:
I agree. You know, a few years back when we said nontraditional families, what people are really talking about was same sex couples and after a couple of Supreme Court decisions, that's not really much of a thing anymore. Legally, there's there's almost no difference in planning for same sex couples anymore as they're worse for the traditional opposite sex couples. But as as Brian says, it's America. You can choose anybody you want to make decisions for you if you can't. And you can choose anybody you want to get your stuff. So, again, sorry to beat the same drum, go see a lawyer. That's the way to start.
Peter Biello:
That's that's Donald Sienkiewicz. He is attorney at the Estate Preservation and Planning Law Office located in Amherst, joining us by Skype. Also with us today, Brian Kugel, coordinator of the Health Care Decisions Coalition at the Foundation for Healthy Communities. Thank you very much, both of you, for being on the program today.
