Photograph by Kathy De La Torre
Campbell attorney Bettie Baker Marshall consults with a client about Advance Directives.
Planning the end of life makes decisions easier
By Rita Baum
I do not want my life prolonged if: (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits.
--Advance Health Care Directive, Probate Code section 4701, July 1, 2000.
Those of us who watched the Bill Moyers September TV series on Dying in America learned that to many, dying well means control over choices, even if unconscious and unable to verbalize their wishes. The new California Advance Directive (AD), a portion of which is quoted above, supplies the legal tool to express your choices and ensure that you maintain control over end-of-life issues. Without an advance directive, hospital staff are legally bound to use all available means to keep you alive as long as possible, or until you or a family member decides otherwise.
According to Campbell attorney Bettie Baker Marshall, many, but not all, Advance Directives executed before July 1,2000, are still valid, and should be reviewed to determine validity. Most people encounter the AD form for the first time when they see an attorney to discuss a will or trust, and may be unprepared to devote careful attention to it because their thoughts are focused on distribution of assets. It's wise take the AD form home, discuss it with family members and give it as much attention as you do the details of the trust.
Preparing an Advance Directive requires careful thought. Modern medicine is able to prolong life with a battery of equipment and procedures, from breathing machines to hydrating tubes. Understanding the meanings of some of the common procedures can aid in preparing specific instructions, and make it easier for both health-care practitioners and family to make decisions that will bring about the kind of closure you would like.
Once you have completed the AD, file it at home, make copies for key family members, and register it so your instructions will be easily accessible to family or hospital staff. More than one third of ADs are locked in a safe deposit box, or can't be found when needed. The same advice applies to other important documents, such as a will or estate plan.
Death is not the end! ... The settlement of the estate follows, wrote 19th-century author and San Francisco newsman, Ambrose Bierce. Fifty percent of adult Americans who die each year do not have a will or any other formal estate plan in place. According to Kiplinger Retirement Report, a will, often with a trust, can save the family from headaches and heartaches, can accomplish the specific goals of the benefactor, and can speed up the distribution of assets to beneficiaries in a tax-favorable way. And contrary to information given at some living trust seminars, a living trust will not shield the estate from federal estate taxes.
There is no substitute for a living trust when it comes to the administration of the affairs of a person who is incompetent. Attorney Marshall advises that one of the lesser known, but important types of, trusts is the special needs trust, which provides support for people unable to care for themselves, while preserving Medi-Cal, SSI and other public benefits.
Resources: Contact information for agencies that can help with end-of-life legal and ethical issues.
Glossary: A list of end-of-life terms and their meanings.
Books and software are plentiful for do-it-yourself will-makers, but some wills and trusts you draft yourself don't work because they lack an important ingredient: expertise. After reviewing your assets an attorney will advise you whether you need both a will and a trust, or if a simple will is appropriate for your needs. Fortunately, says Timothy Ruschin, a Willow Glen attorney, the task of preparing a will or trust is not as complicated as many people believe.
In selecting an attorney, you may get referrals from the County Bar Association or from friends who had satisfactory outcomes in executing their will/trusts. Don't hesitate to ask for clear information about fees and billing. Save on the attorney's time and expense by going to your appointment prepared with the names of beneficiaries, list of assets and how they are owned, including property, life insurance, saving accounts, retirement and nonretirement investments and business interests. Decide if distributions will be in the form of outright gifts or income over a period of time.
And review your documents periodically, says Ruschin. Circumstances may change over the years and your will may no longer meet your needs.
Facing death may call for harder and harder choices in the future. Bioethical task forces and conferences are springing up around the country to examine serious and difficult issues related to the process of dying, including the controversial matter of assisted suicide. The question is especially difficult for physicians who must consider how the act relates to their oath to do no harm. According to the New England Journal of Medicine one of five doctors with experience in caring for patients with life-threatening illness has been asked by patients for assistance in speeding their deaths. In a poll conducted by AARP/ Modern Maturity, it was learned that 50 percent of those surveyed supported some form of physician-assisted suicide.
Oregon became a leader for change in becoming the first state to start a multidisciplinary end-of-life model and the only state to legalize limited-assisted suicide under specific conditions. Oregon guidelines mandate that the patient must be mentally alert, within six months of death, and doctors must certify that the patient's decision was not coerced.
While advance directives can allow for the termination of life-sustaining treatment, assisted suicide means supplying the patient with a prescription for life-ending medication, but the patient takes the fatal dose him or herself. Of approximately 30,000 people who died in Oregon in 1999, only 33 received permission to have a lethal dose of medication.
Long ago in a New Orleans jazz bar, I saw a painting of a jazz funeral parade depicting what struck me as the celebration of a joyous death. Black musicians, singers and dancers with happy faces and postures parading gleefully down a dark rainy street, accompanying a coffin on a horse-drawn wagon, lights from nightclubs reflected on the wet pavement. I have wondered many times since seeing the painting if such an unusual acknowledgment of death (or life?) could really have occurred and if the deceased would have requested it. Now, with the benefit of maturity, I realize the painting was a celebration of a life well-lived--and a death well-planned.
Los Gatos resident Rita Baum has a master's degree in gerontology. She has worked in the field of aging for more than 20 years.
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Los Gatos, California Since 1881
