Elder Law Issues & Answers
WHAT TO LOOK OUT FOR
by Thomas M. Cassidy
The following article is based on an interview with attorney Steven M. Cohen. Mr. Cohen has achieved numerous professional accomplishments. He is a full partner of the firm of Lorenzo & Cohen, a member of the Erie County Bar Association, the Association of Trial Lawyers of America, the New York State Bar Association, the New York State Trial Lawyers Association and the American Bar Association. He is admitted to practice before the Supreme Court of the State of New York , the United States Tax Court, the United States Bankruptcy Court and the United States District Court.
Q. When should a client seek the advice of an attorney about an estate plan?
A. To answer this, we ought to examine what exactly it is that an attorney can do for a client in an estate context. Anyone who has a need for the services outlined below should certainly consult with a lawyer. A lawyer can assist a client with, among other things:
First, the drafting of a binding last will and testament which effectively gives a client's property away specifically to the people and charities the client chooses following his or her death. Every state has laws which determine exactly how a person's property is disposed of if he or she dies with no valid will. People to whom a client would like to leave a certain item, sum of money or property may not get it unless the client has a will which specifically provides for that bequest. A last will and testament can also leave instructions to guide family members regarding burial agreements and the type of funeral service the deceased would have wanted.
Let's look at a few cases in which a person failed to execute a properly drawn or current last will and testament and his or her wishes were not carried out after his or her death.
A sixty-two-year-old woman had an engagement ring which she very much wanted to give to a favorite niece upon her death. She had always intended to give the ring to that niece and it had been promised to the niece over the years. She also had an antique brooch which had passed from mother to daughter for four generations. She wanted to pass the brooch to her daughter and her daughter was promised it over the years, consistent with the family tradition. The woman unexpectedly passed away without having executed a will. The laws of her particular state provided that the engagement ring, the brooch and everything else in the woman's estate had to go to her husband-to whom she was unhappily married-and who happened to dislike that particular niece and wasn't on speaking terms with the daughter. The ring ended up on the finger of the husband's mistress and the brooch on the mistress' lapel. The spirit of the woman is undoubtedly restless to this day and there was no recourse for the niece or daughter. A simple will directing that the ring pass to the niece and the brooch pass to the daughter would have seen to it that the wishes of the deceased were carried out.
In another case, a young husband, Harry and his wife, Helen, had a son whom they named James. They purchased a "Last Will and Testament Kit" from a stationery store to save the money a lawyer would have charged. They followed the instructions carefully. If either spouse died, his or her assets were to go to the surviving spouse. If the spouse had already passed away, the assets would go to the son James. They properly signed the "reciprocal wills" in the presence of the required number of witnesses. After the will was made, Harry and Helen had their second son Paul.
When Harry reached seventy, he took ill with emphysema, severe arthritis and diabetes and the wife cared for her husband at their home.
Growing up, Harry's son James was always in some sort of trouble and in heavy debt. James borrowed large sums of money from Harry and Helen over the years, which he never repaid. James rarely came around, even in later years, and then only when he needed money. He never came to visit socially. Paul was financially secure, married and had a stable middle-class lifestyle and never borrowed money from Harry and Helen. Paul and James were on poor terms with one another.
As Harry's illnesses became worse, Paul helped Helen care for him. For years, Paul would come over almost daily and help Harry bathe and dress. Paul would look after the maintenance of the house and help with the heavy chores. Helen was stricken with a spinal disc degenerative problem when she was seventy-eight and was rendered unable to care for Harry or herself without daily assistance. Paul had Harry and Helen move in with his family, all of whom helped to care for the aging couple.
Harry passed away and there was no probate proceeding. Helen passed away and all assets went to James. Paul and his family received nothing.
Second, a lawyer can assist with tax planning to minimize the state and federal governments' interest in an estate, which maximizes the property available to go to the people and entities of the client's choosing. Sometimes adverse tax consequences can be avoided by very simple standard language in a will, language which goes unnoticed and unappreciated unless it is absent from a will.
For example, it is common to put a provision in a will which states that if a beneficiary dies within ninety days of a decedent, he or she will be considered to have predeceased or died before, the testator. Let me show you a situation I came across in which that common provision was not put in a couple's otherwise well-drafted wills and there were devastating tax consequences.
Guy and Gail worked hard to raise their two children and to see to it that the family would be financially secure. Guy worked outside the home earning a salary and also receiving company stock as regular bonuses, while Gail raised the kids at home, managed the money and established a diversified portfolio worth about $350,000. Guy had a $750,000 life insurance policy naming his estate as the beneficiary. Gail had received money from a personal injury lawsuit when the couple was in their early fifties which fully paid off their home, which had a value of about $200,000. Guy and Gail's other property, collections, artwork, etc. had a combined value of about $50,000. Guy and Gail were driving with their twenty-four-year-old son and their recently married twenty-six-year-old daughter one winter evening. They were on their way home from a golden wedding anniversary party for a great-aunt for which the children came into town to attend with their parents. They were driving in the son's new car. The daughter's husband and two-week-old baby were at home. There was a one-car accident leaving Guy dead and Gail and the son and daughter severely injured and hospitalized. Gail died several hours after she arrived at the hospital. The son died two days later and the daughter died three weeks later.
Guy's will provided for everything to go to Gail. If Gail predeceased Guy, the entire estate was to pass to his surviving children equally. Gail's will provided for essentially the same thing. Neither will contained a provision for a person to be considered to have predeceased the testator if he or she died within ninety days of the testator.
The entire estate, worth about $1,350,000 (including the life insurance policy) passed to Gail without taxable consequence, but a probate proceeding was necessary to pass title of the entire estate to Gail. The estate then passed from Gail to both children. Federal estate taxes were approximately $300,000 and state death taxes were approximately $125,000. After taxes, attorneys and court costs, the son and daughter each received about $400,000. Out of the son's bequest came college loan repayment of about $20,000 and car loan payment of about $12,000.
Since Guy's son died without a will, the laws of his state provided for everything to pass to his sister. A public administrator was appointed, taxes were paid in the amount of about $38,000, lawyers and court costs were paid and about $325,000 went to the daughter (his sister) from his bequest. Her student loans were paid off and other unsecured debts satisfied. The daughter also had no will so the approximately $710,000 she received, after being taxed on state and federal levels, caused her husband and baby to end up with approximately $550,000. Had Guy's will contained the appropriate provision, the daughter's husband and baby would have ended up with approximately $900,000 after all funeral expenses, taxes, attorneys and court costs. Also, the time it took for the estates to completely resolve would have been much shorter and far less of a headache for the young husband of the daughter, upon whose head everything fell to resolve. You see, had the provision been put in the will that anyone dying within ninety days of the testator would be considered to have predeceased the testator, the estate would have gone directly from Guy to the baby.
Third, a lawyer can set up creative trusts which regulate the way in which property passes to different entities, minors, etc. in accordance with the client's specific instructions. Rather than passing money directly to a person or charity in a lump sum to be spent at the free discretion of the beneficiary, you can provide for a more regulated gift. For instance, it is common to provide that a child under twenty-one years of age be given money to be used for educational purposes only, with the remainder given to him or her after he or she reaches the age of twenty-five years. You can also provide that the educational "trust fund" may be used by the intended beneficiary for medical emergencies, room and board, etc. In this way, a testator can prevent the temptation to convert a bequest into a car in favor of education. There are many kinds of trusts, each with its own unique tax consequences and each allows the testator to have some control over assets, even after death, by leaving carefully crafted instructions as to how the money is to be spent.
Fourth, a lawyer helps in the preparation of documents which authorize a trusted friend or relative to make medical decisions for clients in the event of their incapacity and which give instructions to hospitals as to the type of heroic measures clients may or may not want if they are in a permanent vegetative state or afflicted with a terminal illness with no chance of cure. Health care proxies, living wills and "do-not-resuscitate" orders differ from last wills and testaments in that they take effect during the life of a person, whereas a will only takes effect after death. A lawyer can draft all of these documents for a client.
Fifth, assistance is provided in the transfer of a client's assets prior to death to avoid probate. The inter-vivos or "living" trusts can effectively dispose of all assets so that all of a person's property is given away during his or her lifetime, with the client retaining the right to use the property until death. When the client (grantor) dies, there is nothing to probate and nothing for the state and federal governments to tax. Deeds of gift and planned exempt gifts can accomplish the same goals, without the grantor retaining use for his or her lifetime.
Sixth, a lawyer is necessary in the financial planning in anticipation of long-term care in a nursing facility. The laws of every state differ with regard to this. An attorney can advise clients about how best to protect assets prior to going into a nursing home. This may include timed conveyances of property, long-term health care insurance, private pay arrangements, certain public assistance, etc.
Seventh, aid is available when a person is applying for the various benefits available for health care, nursing care, utility costs, food and shelter.
Eighth, a lawyer prepares documents which authorize a trusted and competent person to act on behalf of the client in financial and legal matters (power of attorney).
Finally, a lawyer is crucial during various court proceedings: for the administration of an estate, probate of a will, defending/contesting the validity of a will or applying for/defending against the appointment of a committee or guardian to assume control over the assets and affairs of an alleged incompetent person.
Q. What is a living will?
A. We touched upon this a little bit earlier. A living will is simply a carefully thought out set of written instructions to health care providers as to precisely what treatment patients want or don't want if they are ever unable to make those decisions at a later time. In every state, competent adult patients have the absolute right to make decisions regarding their medical treatment. While patients cannot order their own death in the event of suffering, they can certainly refuse to take certain medications which would serve only to prolong agony and they can request medication which might ease their pain. The problem is that at the time that these very decisions need to be made, patients are often not thinking clearly or are otherwise unable to communicate their feelings to their health care providers. A living will is a formally executed document which is prepared when a client can think clearly, giving directions to doctors and hospitals in such situations. Living wills are binding in many jurisdictions and not binding in others. Different jurisdictions have different requirements regarding the formality of the execution of the living will, such as the presence of witnesses, notary public, physician, etc.
There are a few things which a client needs to remember. First of all, a living will only has an effect when the client is alive, just as a last will and testament only has effect after death. After death, the living will has no legal meaning. Therefore, you wouldn't ever want to combine the two documents into a single document. Secondly, a clear thinking patient can certainly overrule or "revoke" the living will by speaking up at any time. It is not intended to bind patients to any course of medical action, but to serve as the voice of patients when their voice is otherwise silenced by infirmity or mental competence. Lucid people may make the decision that they would never want to be on a respirator for the rest of their lives, being kept artificially alive at great expense, while in an irreversible coma. Once in the coma, patients can hardly let their feelings be known. Therefore, the living will does the talking for them.
Q. What is a DNR order?
A. "DNR" stands for "do not resuscitate." Along the lines we just mentioned, if clients lives are reduced to constant suffering, they may not want their life prolonged if they ever lapsed into cardiac arrest. This might be relevant for people with advanced terminal illnesses who don't want their family's money spent on artificial life support like respirators when their death is inevitable and they will never again regain consciousness. Individuals might want to be "allowed" to pass away peacefully and without technology, keeping them technically alive but in a vegetative state. They can leave instructions to loved ones in a living will that they want no heroic measures taken to prolong a painful life and ask that if they are ever in cardiac arrest, that no one performs CPR or other lifesaving techniques. The problem is, paramedics and other emergency personnel and health care providers who come to the aid of a person in cardiac arrest have a legal duty to try to save that person. This is where a DNR order comes in. A DNR order is a legal document which, in the states which allow them, instructs health care providers not to perform CPR or other heroic resuscitative efforts. A DNR order specifically absolves health care providers from responsibility for withholding resuscitative measures. Generally, a DNR order must be co-signed by both a licensed physician and either the person to whom the DNR order will apply or his or her "health care proxy," who is a person designated to make life and medical decisions for that person.
Some states have detailed legislation authorizing DNR orders and specifically protecting health care providers who honor those orders. A DNR order is not to be mistaken for any sort of request by a patient to be put to death by a care provider. To the contrary, a DNR order provides that if patients should lapse into cardiac arrest or "death," they are to be left alone. It is generally up to the co-signing physician to carefully review the medical prognosis with the patient before signing the DNR order. The physician should make absolutely certain that the patient knows the meaning and magnitude of signing a DNR order.
Q. When do you need to prepare a will?
A. In my opinion, a will should be executed any time clients want their assets to be handled differently upon their death than the laws of their jurisdiction provide for in the absence of a will or if they have specific instructions they want followed after their death. In other words, young parents may want a will to provide for a guardian for their children in the case both parents pass away. They may want to establish education trusts for the kids rather than allowing the estate to pass unrestricted to the kids as soon as they are of age. In essence, a will give a people one last time to speak and direct their own affairs, even after death.
People may think they need a will and it is quite possible that their attorney may have an alternate solution to the person's estate problem. In fact, a document called a living trust is sometimes a better alternative than a will, since it spares the beneficiaries and loved ones the task of probating a will. I always recommend to people that when they see their attorneys, they should simply state their goals and allow the lawyer to advise the best way to go about reaching the stated goals.
If I may broaden the scope of your question a bit, rather than advising just when a party needs a will, here's a list detailing when people need to see their attorneys.
When to see an attorney:
1. After bearing or adopting children;
2. When they believe they may, at some point in the future, need nursing home care;
3. If they have specific requests concerning their medical treatment or if they should become unable to make decisions for themselves or communicate on their own behalf;
4. If they have specific people or organizations they want to leave property to after their death who would not be a beneficiary without a valid last will and testament;
5. If they want to appoint someone to have the authority to make important medical decisions for them if they are unable to make such decisions for themselves or otherwise communicate their wishes;
6. If they have specific burial or funeral instructions to be followed;
7. If they believe their assets will exceed the federal and state tax thresholds, such that there will be tax consequences upon their death;
8. If they need to explore different benefit options offered by their county, state or federal government which they do not understand and which haven't been adequately explained to them by public officials;
9. If they wish to avoid the complicated probate process by giving away assets before their death through the use of tools, such as living trusts and inter-vivos gifts;
10. Anytime an immediate family member passes away with an estate which needs to be administered (no will) or probated (a will exists);
11. Anytime they have legal concerns about their estate.
As I said before, certain estate goals are often better addressed with tools other than a will so it is important to tell your attorney precisely what you want to accomplish and let the lawyer give you the available options.
Q. When does a beneficiary learn the contents of a will?
A. After the death of the testator. When people die, their will is hopefully brought to the attention of a lawyer or the court. The lawyer will then put everyone mentioned in the will on notice of the passing of the person and of the existence of the will. It is common practice to send a copy of the will to the relatives who would be entitled to the decedent's assets if there was no will (i.e., spouse and children in most jurisdictions) plus all people named in the will as a beneficiary, executor, guardian or trustee, but that is not required by the laws of all states. In some areas, beneficiaries and immediate family may simply be summoned or "cited" to appear at a will reading or to court to examine the will and be given the opportunity to object to the will. Sometimes, a testator will put something in the will called an "in terrorem" clause which provides that a beneficiary will lose their bequest if he or she objects to the will. The practice of formal will readings where the family gathers together with named beneficiaries to hear the contents of a will for the first time has more or less given way to the more common procedure of mailing certified copies to all named parties. When there are several wills by the same person, beneficiaries are given the opportunity to object to the will that is offered for probate in favor of an earlier will, if they can show good cause. Earlier wills are often sent to the beneficiaries as well for their examination and are certainly available for inspection by parties and their attorneys.
Since the existence of multiple wills which have been made by a person from time to time tend to cause conflict, it is generally a good idea to destroy all old wills once a new one has been executed.
Q. Do beneficiaries know if a will has been changed?
A. If a will has a codicil or amendment, both the will and the codicil will be sent to the beneficiaries after the death of the testator. If there are old wills in existence, they too will be sent to all the beneficiaries if they are found. In some jurisdictions, beneficiaries may only be advised of the existence of older wills, but may not be provided with copies for their examination and they may need to appear in court when the latest will is offered for probate in order to gain access to the older wills.
Q. Do family members and beneficiaries get notified when someone changes the will?
A. No. A will is a very personal thing and there can be no undue pressure, coercion or influence over the testator when they are drafting a will. To notify family members of changes being made to a will would be to stir up hornet nests which would cause the very pressures the law forbids. No one except the testator and the lawyer need to know the contents of a will until the testator passes away.
Q. What happens if a client becomes too confused to care for him or herself?
A. The court can appoint a person or group of people to look after the affairs of people who have become too confused to manage their own matters or otherwise take care of themselves. These appointed caretakers are sometimes called conservators, committees or guardians. They will often see to the hiring of nurses and other caretakers for the person or may have the person admitted to a long-term health care facility. If clients are concerned about their own abilities to continue to manage their affairs in the future, they can appoint and authorize a trusted individual to take on that responsibility before they actually lose the ability to think clearly. By appointing an attorney in fact through the use of a special document called a power of attorney (as opposed to a licensed attorney at law) to handle one's affairs, they can avoid the need for the court to intervene with the appointment of a committee or conservator.
Q. What is a power of attorney?
A. This is the document by which people authorize another to act on their behalves. Powers of attorney can be general, authorizing the "attorney in fact" to act in all matters in the place and stead of the "principal," or it can be highly specific. For example, people can sign a power of attorney authorizing a friend to list a house for sale and then convey the house for them. Let's say John will be moving out of town and he wants his home sold. He can execute a power of attorney empowering his friend Samantha to act on his behalf regarding the sale of the home. Samantha can then contact a realtor, sign a listing agreement, review any offers, accept an offer and then actually sign the deed conveying the home to a purchaser, noting on the deed that she is signing as an "attorney in fact" or as "power of attorney" for John. The actual power of attorney form would have to be recorded at a nominal fee along with the deed to ensure clear title to the purchaser.
Let's take it a step further. John is concerned about his abilities to continue to manage his affairs on a day-to-day basis. He is tired and has periods of confusion. When he is thinking clearly, he contacts his attorney and asks for a power of attorney appointing Samantha as his general power of attorney. The form can specify that Samantha is authorized to act on John's behalf of all matters and it can further specify that if John should ever become incompetent, Samantha shall continue to have authority to act for him. The form is signed by John and notarized. Now, Samantha may manage John's legal, financial and day-to-day affairs acting with the full authority of John. Remember that a power of attorney is only valid as long as the principal is alive. It does not take the place of a will and if John were to pass away, Samantha would be powerless to dispose of John's assets or manage his affairs. Until John's death, if the power of attorney has been so drafted, Samantha could be empowered to act for John in all matters and transactions. Of course, John could revoke the power of attorney at any time. If the power of attorney is on record with a county clerk or city recorder, John should record the revocation with the same office to make a public record of the revocation.
Q. What financial abilities does a power of attorney grant?
A. The most important reasons to have a power of attorney-if you have someone you completely trust with all of the powers a power of attorney conveys-are to give your agent or attorney in fact the ability to engage in Medicaid planning, in asset management associated with Medicaid entitlement and in the various spousal impoverishment acts which most states have to protect the spouse of someone who needs costly long-term health care. This means giving your attorney in fact full power to manage, transfer, convey, sell, purchase, gift and otherwise dispose of your assets. That takes a lot of trust and not everyone is fortunate enough to have people in their lives upon whom they can comfortably give all of that authority. A dishonest or unqualified agent or attorney in fact can do a great deal of damage to a principle's estate so be sure of the person you select. Otherwise, the court can appoint guardians, committees and conservators to oversee and manage your affairs and the court will scrutinize the actions taken by such people to insure an honest accounting. If you are lucky enough to have a qualified, trustworthy friend or relative who is willing to take on the responsibilities as your attorney in fact, you should strongly consider speaking with your attorney about executing a power of attorney.
Some states have standard power of attorney forms which list the types of transactions and affairs the attorney in fact can handle for the principal and which require the principal to actually initial before the authority to handle such a matter is given to that person. Some forms give the full range of powers to the attorney in fact unless otherwise limited to only certain transactions by a specific notation by the principal. The nature of and complications associated with the power of attorney form really require the attention of an attorney at law before a principal executes such a powerful document. It would be a shame for John to have gone to the lengths of obtaining, executing and filing a power of attorney during his competency only to have it declared invalid during his later incompetency because a simple box wasn't checked off or if the form did not pass muster with the latest state statutory requirements.
Q. What makes up an estate plan?
A. In my opinion, almost everyone should have an estate plan which includes:
1. A power of attorney which authorizes another to fully act in the event of incompetency.
2. A health care proxy which authorizes someone to specifically make health care decisions in the event of incapacity.
3. A living will which sets forth the desires of the principal regarding life support, organ donation, heroic rescue measures, etc.
• A last will and testament. As stated earlier, having a validly drawn and executed power of attorney can avoid the need for the appointment of a guardian, committee or conservator, a process which is not only costly, but also emotionally draining on loved ones.
As an additional safeguard, you may wish to appoint joint agents as your attorneys in fact, a provision which requires two or more people to act together and unanimously when making decisions for you. For financial powers of attorney which are executed specifically for the purpose of allowing others to make business type decisions for you, appointing joint attorneys in fact can be very useful. First of all, you get the benefit of the judgment and experience of two people for every decision made on your behalf. Secondly, each can monitor the other to prevent a dishonest transaction.
The laws of every state are different and an attorney should be consulted to make sure the form you are using complies with the formality required by your state.
Q. What is a "durable" power of attorney?
A. The term "durable" power of attorney refers to a power of attorney which allows the attorney in fact to continue to act for the principal after the principal becomes incompetent. It is said to "survive" the incompetence of the principal. Whereas an ordinary power of attorney form may have a provision for it to survive the principal's incompetence if a special box is checked or initialed, a document labeled "Durable Power of Attorney" will generally affirmatively state that it will survive the principal's incompetence or incapacity unless the principal specifically checks off a box or specifically initials a provision which renders the power of attorney void in the event of incompetence. A "non-durable" power of attorney or one which does not specifically provide for the principal's incompetence, is a power of attorney intended only as a matter of convenience for the principal during their absence or periods of occupation with other affairs, but which is based upon the notion of ultimate control resting with the principal. In the example of John and Samantha, I discussed earlier, John would have ultimate control of his affairs and could monitor Samantha's actions at all times, ultimately revoking her authority if and when that became appropriate.
For estate purposes, a "durable" power of attorney which survives the incompetence of the principal is far more useful than one which becomes void upon incompetence. Medicaid planning, estate management, etc. after incompetence can save you and your spouse a great deal of grief and money. Along the same lines, a "springing" power of attorney is a power of attorney which specifically and only takes effect upon the incompetence of the principal. It is generally held in escrow by a lawyer until the client becomes incompetent or incapacitated, upon which the lawyer contacts the attorney in fact and presents the duly execute d springing power of attorney form.
Q. What is a durable power of attorney for health care?
A. The health care power of attorney is a power of attorney which gives someone full authority to make medical treatment decisions for you when you are unable to make such decisions for yourself. Many states have provisions for health care proxies which do the same thing as health care powers of attorney.
Q. Is a power of attorney recognized only in the state where it was drawn?
A. This differs from state to state. As a general rule, other states will honor a power of attorney if it has been drafted and executed in such a way that it would have been valid if it were drafted and executed in that other particular state. Let's say state one requires that the power of attorney be notarized and state two requires two witnesses plus a notary of the principal's signature. A power of attorney executed in state two would most likely be accepted in state one, but the reverse is not necessarily true. If you advise your attorney that you expect to eventually reside in another state, the formality required by that other state can be quickly researched and the power of attorney can be executed in such a way as to pass muster with the requirements of both the state you are in and the state you intend to reside in eventually.
Q. What advice would you give to a family in an elder care crisis?
A. If at all possible, steps should be taken prior to a crisis to plan for the likely scenarios associated with the elderly. An elder care crisis can put a whole family into a state of emotional confusion. It is at this time that an attorney can come to the rescue by organizing and dealing with whatever problems come along. The advantage of bringing in an attorney at such a time lies in the fact that the lawyer is emotionally detached from the situation and can act with a clear head. Of course, it would be more prudent to have a plan laid out prior to the crisis in anticipation of the crisis or death or disability of a loved one. If an attorney isn't available at the time of the crisis, a trusted friend or clergyman should be called who could help bring the chaos under control. Sometimes it just takes a calm person on the scene of a crisis to ask the important questions and write down the answers on a pad to effectively bring a crisis situation into clear focus.
Family lawyers with whom you have a relationship will often make themselves available on weekends and late night hours in times of need. You should keep the telephone numbers of lawyers, clergy and close friends handy, not just for your own use, but for use by people who may come into your home when you are incapacitated and may want to reach out to your support network on your behalf.
If you are in the midst of a crisis involving an elderly friend or relative, I would suggest the following:
1. Get help. Call your attorney, friend, clergyman, police department, fire department, relative, neighbor, etc. If you are frazzled, having someone around to assist or even just to hold can be invaluable.2.
2. Locate necessary documents, such as medical insurance cards, wills, health care proxies, DNR orders, powers of attorney, medical records, etc.
3. If you must leave the house to accompany someone to the hospital, turn off anything on the stove, coffee pots, etc., bring change for a pay phone and money for a meal (and a taxi ride home if you travel to the hospital by ambulance or emergency vehicle). Take your personal telephone directory and don't be afraid to call collect. Go to the bathroom before you leave and take any of your own medications you may need with you. Bring your glasses.
Q. What do you do if someone has passed away in your home?
A. First of all, it is important to stay calm. A thousand questions race through your mind when faced with this situation. You should call the rescue squad or paramedics as soon as you find an unresponsive person. He or she may not actually be deceased and the rescue personnel can render immediate treatment if warranted. If the person is deceased, the rescue personnel can and often will transport the deceased to a hospital, which can easily and efficiently deal with the administrative details of the physical body. If a rescue squad isn't available, call the police. If you've called the fire department or rescue squad, chances are a police unit has been simultaneously dispatched. The police have ready access to anyone else who may be needed, like the medical examiner or funeral director. There are a few things you should not do if someone passes away in your home. Although you may want to preserve the dignity of a friend or loved one who has passed away, resist the temptation of moving or dressing a body before the rescue squad or police arrive. There is no shame in death and the location of the person when he or she is found by you may give the police or medical examiner a clue as to the cause of death. Even if he or she is on the toilet or in a state of undress, leave the person undisturbed until the authorities arrive. Of course, if you are administering CPR or other first aid as part of a rescue attempt, you should certainly move the person to the extent necessary to properly care for him or her. After you have called rescue squad or the police, you may want to notify the clergy representing the faith of the person. Clergy are often a calming influence, whether they are administering some religious last rites or comforting loved ones.
Q. Can a person be too sick to draft a will?
A. If a person is of sound mind, he or she can execute a valid last will and testament. Even if he or she is paralyzed and cannot sign their name, a person of sound mind with the aid of qualified witnesses can execute a valid will. People who are not of sound mind and who are not thinking clearly cannot execute a valid last will and testament, even if they are physically fit and have witnesses. People must be able to convince witnesses that they know that the document they are signing is their will, they must know what the will is for, to whom they are making bequests, who they are appointing as executors and trustees, what the responsibilities are of the executors and trustees, the nature and extent of their bounty and their own identity. They must be able to convince the witnesses that no one is coercing them or exerting a force or influence which is in any way interfering with the testator's free choice.
I can recall a situation a few years ago when a family contacted me after their elderly brother passed away. A will was produced which, to everyone's amazement, left everything to a lady who lived next door to the brother. Although they knew of the woman and knew she was a friend to the decedent, it struck everyone as odd that his whole estate would go to her to the exclusion of the family, which had been close knit and supportive of one another for eighty years. At the will contest trial, I put the attorney who drafted and witnessed the will on the stand, followed by his secretary, who also witnessed the will. The following information came out in testimony:
1. The lady went to the attorney and told him her friend was in the hospital and wanted to draft a will.
2. The lady handed the attorney a sheet of paper with all of the provisions her friend supposedly wanted in the will, which of course, left everything to her and appointed her executrix. The paper was in her handwriting and was supposedly dictated by the decedent to her.
3. The lawyer drafted the will in accordance with the terms on the paper, went to the hospital with his secretary and read the will to the man approximately one week before his death and had him sign the will.
4. At the time of the execution of the will, the decedent had an IV (intravenous) in place administering morphine sulfate.
5. At the time of the execution of the will, the decedent spoke very little English. He was of Italian descent and Italian was his first language.
6. His signature was not recognizable and literally dropped off the page.
7. The woman was present in the hospital room at the will reading and execution.
8. The woman paid the attorney fees.
9. Neither the attorney nor his secretary could recall the decedent saying anything at all. They didn't know if he had an accent and didn't know the sound of his voice. They based their attestation of the decedent's competence on a slight nod of the head.
Needless to say, the will was thrown out. Even if the decedent had spoken English, the will could be challenged because he was on medication which could be said to have dulled his faculties at the time of the execution of the will. Even if he spoke English and wasn't currently on medication, the will could be challenged because of his illness which caused him great pain and rendered him exhausted and distracted. In short, a will is too important a document to leave to the last minute and your situation may eventually deteriorate such that you cannot execute a valid will when you finally get around to it.
Q. What if you can't afford an attorney?
A. Almost every jurisdiction in the United States has an organized bar association which has a program that provides free legal services to people who qualify. In addition, just about every attorney I know does a certain amount of pro-bono work for people who cannot afford to pay. Start with the bar association in your area. If you can't find one, call your state bar association for guidance.
Q. Do you have any other advice that you feel would make things easier for a family that has experienced the loss of a loved one?
A. One thing that I try to impress upon everyone is to keep all important papers in one place and to tell your executor and lawyer where those papers are kept. I'm specifically talking about your will, bank books, bank records, life insurance policies, health care proxy, powers of attorney, living will, securities portfolio records, records of monies owed to you by others and information on the whereabouts of all assets and a listing of all account numbers. Tracing that information down can be very burdensome.
Excerpted from Elder Care: What to Look For, What to Look Out For! By Thomas M. Cassidy. Copyright © 2004 by Thomas M. Cassidy . All rights reserved. Excerpted by arrangement with New Horizon Press. $14.95. Available in local bookstores or click here.
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