The dollars and sense of living wills.
Given the potential for nightmarish suffering that can await those caught in a prolonged and unnecessary limbo of tubes and respirators, this is no small benefit. In fact, so many people now view living wills as a viable response to the dark side of contemporary medicine that a remarkable 20 percent of adults in this country have drawn them up, according to a recent Gallup Poll.
Americans are far less clear, however, about the financial benefits of a living will and its place in an overall estate plan. Those benefits begin with enabling you to avoid the enormous drain on your estate that can result from the needless prolongation of life. According to Ron Wilson, a partner in the Phoenix law firm of Robbins and Green, maintaining life-support systems for a patient in an irreversible coma can cost upward of $1,000 a day. Even if you are covered by health insurance, many policies set a yearly limit on hospital-care reimbursement, which can soon be overwhelmed by such charges.
Living wills, says Wilson, are a crucial part of the estate-planning process because they help remove the burden that could be imposed on your heirs of determining how you should be treated if terminally ill.
In this respect, he says, the living will is a natural partner to the living trust, in which you can make specific provision for the handling of your financial affairs should you become incapacitated. This financial-planning tool allows you to put all your assets in a trust, to which you can name yourself as trustee. You can also name a successor trustee who will continue the trust after you die or are incapacitated, following your instructions for distribution of assets. In addition to helping avoid the costs of probate, a living trust protects the privacy of your estate.
Coordinating the establishment of the living will and living trust can strengthen both instruments, says Wilson. For example, many lawyers recommend that, when setting up a living will, you designate a health-care surrogate, someone to whom you have given what is called durable power of attorney for health care. This person is granted the authority to make medical decisions for you should you become unable to do so yourself. The person to whom you give durable power of attorney for health care in the living will, says Wilson, can also be cuccessor trustee in the living trust.
In addition, says Mark Woolpert, principal in the San Luis Obispo, Calif., law firm of Woolpert & Associates, it is also important to give someone general durable power of attorney to make decisions for you not related to medical matters. This can be crucial, for example, if you become incapacitated and assets outside the living trust need to be transferred into it. The person to whom you grant general durable power of attorney, of course, can be the same person given durable power of attorney for health care.
Similarly, when the living will is signed and given to your doctor, he or she can be identified as the physician who would establish your competency to administer your living trust.
Setting Up the Living Will
As a document in its own right, a living will is relatively easy to establish. In fact, you do not even need a lawyer, although it may be wise to consult with one. Most states that have established living-will laws also make available standard forms for these statements. In addition, the New York-based Society for the Right to Die, which firs developed the concept of the living will in the 1960s, provides a form that can be used in all 50 states.
Care must be taken, of course, in those states where there are no statutory provisions for living wills, says Jeffrey Consolo, a partner in the Cleveland law firm of McDonald, Hopkins, Burke & Haber. The eight states that currently do not have such laws include several with substantial populations of older citizens: New York, New Jersey, Pennsylvania, Ohio, Massachusetts and Michigan.
If the living-will law in your state permits adding instructions to the standardized form, your lawyer can be helpful in suggesting how these additions might be worded. Legal counsel can also provide useful aid in tailoring the will to suit your individual wishes concerning the withholding of medical treatment, which are likely to go beyond the specifics enumerated in the state law.
In fact, some lawyers suggest that you draft two living wills, including one that sticks stricly to the letter of the law. A second will that isn't covered by the language of the statute would establish a more personal statement of what kind of health care you wish to refuse in the event of catastrophic illness.
There are differences of opinion among lawyers on how to draft personalized living wills. Many say the wording should be very clear to cover all the possible medical procedures you want to avoid. Other lawyers, however, caution that such specificity may itself cause problems.
"You can't possibly enumerate all the possible situations and treatment strategies you might want to avoid," says Bruce Vigvery, a staff attorney for the American Association of Retire Persons. "The best strategy is probably to cite the circumstances you want to avoid -- for example, being maintained in a vegetative state -- but be a bit general about the treatments you would exclude."
And don't forget to include durable power of attorney. According to Wilson, durable power of attorney for health care can extend your right to refuse medical treatment beyon the limits authorized in a state's living-will law. Other attorneys take a less aggressive stance, arguing that in the absence of a specific statute broadening durable power of attorney to cover medical decisions, this attorney-in-fact does not have the right to venture beyond the state's living-will statute. At the very least, these stand-ins can become effective advocates if you are incapacitated, insisting that doctors carry out the wishes you have expressed in your living will.
According to the Society for the Right to Die, about 30 states have passed laws granting some form of durable power of attorney for health care. In addition, the society says, seven other states have interpreted their general durable power-of-attorney laws to include health-care decisions.
A lawyer can also be useful in updating a living will if there is a change in state law. This can be important: A number of states this year are considering adopting living-will or durable power-of-attorney laws of revising existing statutes. Arizona, for example, revised its law in May, giving individuals with living wills the right to refuse nourishment if they become comatose.
Enlisting the services of a lawyer to establish a living will should not be costly, says Wilson. An appropriate fee for such services, he says, should run less than $50. In fact, many lawyers who help clients set up a living will in conjunction with a living trust do not charge extra for this service. For $25, the Society for the Right to Die will review the living will and maintain a registered copy.
Living Wills Are Not
Despite the benefits of living wills, this instrument may not be appropriate for you. "Living wills are not for everyone," says Wilson. "I've seen people with strong religious backgrounds draft living wills but later withdraw them because of the conflict with their beliefs," he says. "You must think through your position on the right to die very carefully before you set one up."
It is also important to realize that living wills are by no means legally airtight. They can be -- and often are -- challenged in court.
If you are considering setting up a living will, you should also realize that limitations are sometimes placed on who can use these instruments. Many states, for example, place restrictions on individuals establishing a living will if they have just been notified of serious illness. And a number of states flatly refuse to allow the activation of a living will for pregnant women.
In addition, living wills can be problematic simply from an administrative perspective, and anyone who drafts one should understand the work involved. Some states -- Mississippi, for example -- insist that your physician receive a certified copy from the state. Most states require that a living will be updated every five years. As state law changes, it may be to your advantage to revise even more often. And if you move from one state to another -- or if you are suddenly stricken outside your home state -- your living will does not necessarily remain valid.
Despite its problems, most lawyers view the living will as an essential weapon in guaranteeing your right to refuse medical treatment.
"Our whole emphasis [in developing the living will] is avoiding challenge to one's right to control medical care," says Doron Webber, the director of communications at the Society for the Right to Die. "The bottom line is that it gives you something in writing that has usually been specifically backed by state law. People pause before taking that on."
Don Yacoe is a freelance writer Atlanta.
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|Date:||Sep 1, 1991|
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