Let’s say that you have decided to follow your Physician’s advice and complete your Health Care Directive, thus providing a clear understanding of your wishes as they relate to life sustaining measures. You understand the significance of having a Health Care Directive, but as you research the process you are confronted with a lack of understanding regarding what life sustaining measures encompass.  This is a common frustration.

Life sustaining measures can be defined as, “Any medical treatment in which the primary goal is to prolong life rather than treat the underlying condition.”  In such cases an individual’s own body is not capable of sustaining proper functioning on its own without medical intervention.

Artificial nutrition and hydration are utilized when an individual is not receiving the nutrients necessary for health and well being. Artificial nutrition (tube feeding) requires a tube be placed into the stomach or the upper intestine.  Hydration (fluid replacement) involves tube placement intravenously (IV) via a needle.

Cardiopulmonary resuscitation (CPR) is used when an individual’s heart beat and/or breathing has stopped.  CPR includes treatments such as mouth-to-mouth resuscitation, chest compressions, electric shock and/or drugs to restart the heart.  CPR can be life saving, however, there is a risk of broken or cracked ribs, punctured lungs and death.

Mechanical ventilation supports a person’s breathing when they can no longer breath on their own. In this situation a machine called a ventilator forces air into the lungs via tubing in the mouth or nose.

Dialysis is the artificial process by which waste products and excess water are removed from the blood. It’s used when the kidneys are no longer able to do this adequately.

These examples of life sustaining treatments are just a few of the more common measures taken to continue life when one or more body systems are not working properly.  Deciding what, if any, treatments are right for you should depend on several factors:

Does the treatment relieve suffering, restore functioning, or enhance the quality of life?  If so, these would be some of the benefits of treatment.

Conversely, a treatment may be considered problematic if it is painful, prolongs the dying process or negatively effects the quality of life.

Other questions to ask yourself might be: What are my values as they relate to life prolonging measures?  Who will carry out my wishes should I become incapacitated?  If I start treatment and it does not improve my status will I want to continue that treatment? If so, when?  (It should be noted that it is ethically and legally acceptable to discontinue a treatment that is no longer of benefit. It is the disease not the withdrawal of treatment that causes death.)

How you choose to complete your Health Care Directive and what measures you choose to take are up to you.

Talk to your doctor and don’t be afraid to ask questions if you find the terminology confusing or you simply don’t understand.

Ultimately understanding your Health Care Directive and the medical terminology associated with it will enable you to communicate your wishes to those providing your health care and increase the likelihood that your wishes will be honored.

The following article was featured in our print newsletter. Don’t receive our newsletter?  If you’re a Triangle area resident, sign up here.

While it is important that your estate plan work as you intended, it is also important that your critical healthcare directives be accessible, especially in an emergency.  This is why, at Carolina Family Estate Planning, your initial DocuBank membership is included FREE as part of your estate plan.

Research has found that about 75% of the time healthcare directives (e.g. living will, healthcare power of attorney, etc.) are not available in an emergency. I know first-hand how hard this can be because my father laid in the hospital for three days unable to speak before anyone notified by sister or me.  So, our clients subscribe to the DocuBank service.

Each of our clients carry in their wallet a card that provides hospitals access to their healthcare directives and emergency contact information via fax or the Internet—using the member number, pin and instructions on their card.  Access is available 24/7/365, worldwide.  Subscribers are provided alert stickers to place on their driver’s license and health insurance card to make the hospital aware of their DocuBank registration.  And, when the hospital requests their healthcare directives from DocuBank, they will also receive the names and phones numbers of their doctor and up to three loved ones, so that the hospital can reach them quickly in an emergency.  To learn more, call 1-866-DOCUBANK (362-8226) or visit www.docubank.com

If you’d like to discuss planning options for you or a loved one, call our office at (919)443-3035, and request information about our Upcoming Workshops.

By Jackie Bedard, Carolina Family Estate Planning

Whether you live in Cary, North Carolina or Twodot, Montana, the need for estate planning is the same.  Sure, there are some laws that vary a bit from state to state.  Americans in general, though, need to prepare their estates in order to protect both their assets and those they wish to receive them.

If it mirrors the national average, then only about 35% of Cary residents have estate plans.  That means that 65% of Americans have not yet prepared for what will happen to their assets when they die.  These assets might include cash, stocks, bonds, real estate, insurance policies, and even personal items and heirlooms.  Without proper estate planning, none of those things are well protected.

The first step in estate planning is to make a list of your assets.  This can then be used to create a last will and testament.  It’s generally best to meet with an estate planning attorney, especially if minor children are involved.  In addition to figuring out who gets what item, this attorney can help you set up trusts and guardianships for those children.

Whether you have young children, adult children, or none at all, it is also important to create a health care power of attorney.  This document allows you to make choices about your medical care should you be unable to explain them yourself due to illness or injury.  This explains to doctors the proper course of action to take, according to your wishes, even though you are unable to discuss it with them at the time of treatment.

Estate planning for Cary residents should consider this vital information, including a power of attorney that officially transfers your legal and financial decision-making authority to the person of your choice when needed.

Finally, it will be necessary to name someone as the executor of your will.  When you pass away, this person will handle the administration of your last will and testament, as per your instructions.  When conducting estate planning for Cary residents, a qualified estate lawyer will ensure that this executor is given the appropriate legal authority.  In some cases, the attorney may actually be the appointed executor.

The following Op. Ed. is written by Nathan A. Kottkamp, Chair of National Heatlhcare Decisions Day.

Join National Healthcare Decisions Day…Because Your Decisions Matter!

Please help us make history, again.  April 16th, will be the fourth annual National Healthcare Decisions Day.  The inaugural event, which was formally recognized by Congress and numerous state and local governments, included participation by 76 of the most prominent national healthcare, religious, and legal associations and organizations.  By the second year, we over 700 local and state organizations throughout the country also participated.  At every level, the goal of this nationwide initiative is to ensure that all adults with decision-making capacity in America have both the information and the opportunity to communicate and document their future healthcare decisions.  The first years’ results were impressive—over 750,000 people obtained resources to make their healthcare decisions known—but there remain millions of Americans to go.

While making healthcare decisions is often difficult in the best of circumstances, making decisions for others is even more complicated. Each of us has the ability to guide our healthcare providers and our loved ones about what we want. Advance directives give you the ability to document the types of healthcare you do and do not want, and to name an “agent” to speak for you if you cannot speak for yourself. As Terri Schiavo’s situation vividly revealed, having an advance directive can be valuable for all adults, regardless of current age or health status.

With the Patient Self-Determination Act of 1990, Congress affirmed the right of every citizen to set forth his or her future healthcare wishes in writing with an “advance directive.” Yet, various estimates suggest that only about 25% of all Americans have done so.  Because advance directives can be created without a lawyer, for free, and relatively easily, this figure is astonishingly low.  In recognition of this, National Healthcare Decisions Day strives to provide much-needed information to the public, reduce the number of tragedies that occur when a person’s wishes are unknown, and improve the ability of healthcare facilities and providers to offer informed and thoughtful guidance about advance healthcare planning to their patients.

Please visit www.nationalhealthcaredecisionsday.org for a variety of free information (including free advance directives forms for every state) and tools to assist with thoughtful reflection on healthcare choices and ideas on how to get involved. Additionally, watch for events in your community honoring National Healthcare Decisions Day.  Finally, please share this information with your loved ones and colleagues.

With healthcare, “your decisions matter,” however, others need to know your wishes to honor them. There are no wrong answers when thinking about healthcare choices and completing an advance directive. Please use April 16th, to decide, discuss, and document your wishes, whatever they may be.

Nathan A. Kottkamp

Chair, National Healthcare Decisions Day

In support of National Healthcare Decisions Day, Carolina Family Estate Planning has published North Carolina’s statutory Health Care Power of Attorney on the firm website as a free download to the public.

Other articles and resources available:

What Does a Health Care Agent Do? and How to Choose?

How to Select Your Health Care Agent

What to Do After You Sign Your North Carolina Health Care Power of Attorney

By Jackie Bedard, Carolina Family Estate Planning

Today I want to tackle 2 very important questions I receive all the time, and that’s “What is a Heath Care Agent?” and “How do I Choose the Right Person for the Job?”

Yet before I answer these questions, let me start by saying that as an estate planning attorney, I hear stories regularly of families who are literally barred from making medical decisions on their loved one’s behalf because they didn’t have the proper documentation in place when an accident or incapacity occurred.

It’s a devastating situation, and unfortunately something we are seeing more and more of as strict privacy and HIPAA laws are put into place.

For that reason, I always advise every adult (including 18-year-olds who can no longer rely on mom or dad for help!) to educate themselves on this important subject and ultimately put a health care power of attorney in place so someone always has legal permission to act on your behalf in an emergency.

What Does a Health Care Agent Do?

If you’re not familiar with the role of a health care agent, this is essentially the person who will carry out your wishes regarding things like life-support, resuscitation and feeding tubes if you are incapacitated and unable to speak for yourself.  Your health care agent will also handle the day-to-day decision making regarding your medical care including (but not limited to):

• Medication administration
• Blood and blood products
• Diagnostic tests
• Dialysis
• Surgery
• Long-term care (i.e. nursing home assistance, home health care)
• Hiring and firing medical personnel
• Determining who can (and cannot) visit you during your hospital stay
• Getting court authorization to obtain or withhold treatment if your wishes are not honored by a doctor or other healthcare professionals

How to Choose a Health Care Agent

The choice of a health care agent requires very serious consideration.  While it may initially seem like an easy choice, this is actually one of the most common areas people get stuck on when trying to complete their estate plan.

Remember, your health care agent could be called on to make some of the most difficult and heart wrenching decisions they’ve ever faced in their life.    The job could also be time consuming, stressful and emotionally draining depending on the nature of the emergency.

For these reasons, I would advise you as an estate planning attorney to really take your time and thoroughly evaluate all possible candidates for the job. Here are the top three qualifications I ask my clients to consider when narrowing their search:

1. Location- In a true medical emergency, your health care agent may be called upon to make round-the-clock decisions until you are stable. If that occurs, you’ll want someone who lives close enough to meet with doctors and visit the hospital whenever necessary (which of course may also mean excluding people who travel a lot on business or have demanding jobs).
2. Medical Understanding- While your health care agent certainly doesn’t need a PhD in science, you do want someone who is capable of understanding your medical condition and the choices presented to him or her by the doctors overseeing your care.  That may also require you to weed out candidates who are overly squeamish or emotional about medical subjects to ensure the best decisions are made on your behalf.
3. Loyalty- The person you choose as health care agent should feel a sense of loyalty to you and your wishes to ensure your preferences are fully carried out in the face of emotional stress, personal disagreement or pressure from other family members to make decisions contrary to those you have specified.

Once you’ve selected your health care agents, be sure to also select back-ups in case your first choice is not available.  I would also strongly encourage you to talk to your selected health care agents about your wishes regarding your health care preferences.  I know these are the tough conversations that none of us want to have, but it will ensure that you receive the care you want and it will be a huge weight off of your loved ones shoulders if they have clear guidance from you.    In our office, we’ve developed detailed health care worksheets that all of our client’s complete to help capture these critical instructions.

Of course if after going through this brief checklist you still have questions about how to choose a health care agent, what an agent can do for you or even how to limit the scope of your agent’s power during a medical emergency, I invite you to call our office at (919)443-3035 and schedule a Peace of Mind Planning Session.  During this session we can discuss your options and make sure you truly have the right documentation in place to protect your medical wishes if the unthinkable occurs.

According to Cary estate planning attorney, Jackie Bedard, Alzheimer’s and Dementia Awareness Week (February 14^th –21^st) is the perfect time to have ‘tough conversations’ with aging parents about their wishes and plans should the disease ever strike.

CARY, NC, FEBRUARY 2011: “Does mom want to live in a nursing home?”

“How would dad expect living with Alzheimer’s or Dementia to affect his quality of life?”

“Is there legal documentation in place that ensures someone can act financially on mom or dad’s behalf if they are unable to?”

These are just three of many questions that experts are urging adult children to ask their parents during Alzheimer’s and Dementia Awareness Week (February 14^th- 21^st).   Without the answers to such questions, families could be left battling over long-term care, struggling financially and not truly honoring their parent’s wishes should the disease strike their family and their parents wishes not be known.

“Many families avoid talking about Alzheimer’s or Dementia until it’s too late,” says Cary estate planning lawyer, Bedard.  “Especially from a legal standpoint, if you don’t know your parents’ wishes or have the proper documentation in place, you could be left struggling financially to provide the quality care they need.

According to Bedard, there are five specific conversations adult children should have with their parents as soon as the opportunity presents itself.  They comprise the following:

1. Long-term care preferences- Does mom or dad want to live in a nursing home or would they prefer in-home care if the need presented itself?  If they prefer a facility, what amenities and activities are important to them at this point in their life?  These are questions that if discussed in advance can make the transition into an assisted living facility or a home-health care program much easier on everyone when the time comes.
2. Current legal documentation- It’s imperative that adult children find out what legal documentation their parents have in place before incapacity occurs.  This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf.  Otherwise the family will be forced to petition a court for control over their parent’s affairs if they have passed the point of legal capacity.  Also, the adult children should know where such documents are kept and have easy access to them if needed.
3. Medical preferences and wishes- Adult children are urged to find out what type and how much medical care their parents want after receiving a diagnosis of Alzheimer’s or Dementia. Do they have specific wishes about life support or other end-of life medical treatments?  Who do they want to make such decisions on their behalf?  The answers to these questions will help your parents to feel secure knowing their wishes will be carried out during an otherwise emotionally-charged time.
4. Current state of financial affairs-  To ensure finances stay properly managed after a diagnosis of Alzheimer’s or Dementia, adult children should use this week to start asking tough questions about their parent’s financial affairs.  This includes finding out the location of any safety deposit boxes, bank accounts, investment or brokerage accounts, outstanding debts or other assets unknown to the family.   Otherwise, necessary assets needed to cover long-term care or other expenses could be overlooked when memory loss ultimately occurs.
5. Important contacts and information- While their memory is sharp, adult children should work with aging parents to compile a list of important contacts and information that will be useful to the family if memory loss occurs. This includes documenting key doctors, professional advisors (i.e. accountant, attorney, financial advisor) and important passwords for online accounts.

“While these conversations are certainly not easy to have, families can make the transition into living with Alzheimer’s or Dementia disease much easier by simply planning ahead,” says Bedard.  “Not to mention, mom or dad will appreciate your willingness to make sure their wishes are honored if and when incapacity occurs”.

Attorney, Jackie Bedard is the founder of Carolina Family Estate Planning in Cary, NC, a practice that specializes in estate planning law.  She is also an active member of the National Network of Estate Planning Attorneys.  For more information on how you can protect yourself and your loved ones, visit www.CarolinaFEP.com or call (919) 443-3035.

By Jackie Bedard, Carolina Family Estate Planning

If one of your 2011 resolutions includes getting your financial and legal affairs in order should something unexpectedly happen to you, I have a gift I think you’ll enjoy.

To be specific, I just put the finishing touches on a free report I wrote entitled, “What You Don’t Know CAN Hurt Your Family: 5 Easy Ways to Make Sure Your Children, Wishes and Assets Stay Protected Should Something Happen to You”.

In this report you’ll learn 5 easy ways to get your legal and financial affairs in order.  You won’t even need the help of an attorney for some of these important steps; simply follow my instructions in the guide and cross each item off of your “to-do” list as you go.

You’ll also discover:

• How to legally name guardians for your minor children in a way that will hold up in a court of law
• The difference between a will and a trust, and which tool you really need to make sure your family, wishes and assets stay protected upon your passing.
• The details about a simple document you can use to give someone legal permission to act on your behalf if you were incapacitated in an accident but did not die (…and without this document, your family could be facing some hurdles under the current HIPAA privacy laws!)
• How to amass your “entire family wealth” and leave a true legacy to your children (hint: you don’t have to be wealthy and it’s easier than you think!)
• And so much more!

To grab a copy of this report, simply visit http://www.carolinafep.com/5waysrequest.html

I’d also like to encourage you to forward this to any of your family or friends who really need to get their affairs in order.  I would especially encourage you to reach out to anyone who has minor children, owns their own home, cares for aging parents or is approaching retirement age themselves.

By: Jackie Bedard, Carolina Family Estate Planning, Cary, NC estate planning lawyer

You’ve gone through the steps of selecting your health care agent and you’ve signed your health care power of attorney, now what?

First, talk to your agent and discuss the following:

• What’s important to you?
• Are there specific medical treatments you do or do not want?
• If you have an end of life illness, would you prefer to be cared for in a nursing home, hospital, or at home?

Also consider documenting these wishes in letters of instructions addressing how you’d like to be cared for. While it might be impossible to address all of the ‘what ifs,’ it can give both you and your agent greater peace of mind if you provided some guidance about your treatment wishes.

Finally, be sure to inform key individuals that you have executed a health care power of attorney. Notify your doctor, family and close friends about your preferences and make sure a copy of your health care directives are accessible (consider using a service such as DocuBank).

Give copies of your health care power of attorney to:

• Your agent and your alternate agents
• Primary care physician
• Other health care providers actively involved in your medical care
• Health care institution providing your care
• Family members or other responsible persons who may be called in the event of an emergency

As we’ve discussed before, every adult should have a health care power of appointment. Your health care agent is the person you nominate in your health care power of appointment to make medical decisions on your behalf in the event that you are unable to make them for yourself due to some sort of disability or illness.

Such decisions often include discussing with your doctors appropriate courses of treatment, and this conversation may include the most difficult decision–whether your life should be continued by artificial means such as artificial breathing machines, feeding, or hydration.

When choosing your health care agent, here are a few criteria you need to consider:

• Do you have a strong level of trust in your agent?
• Will your agent proactively educate himself about your illness and ask the appropriate questions of your medical care providers?
• How well does your agent handle stressful and emotional situations?
• Are you confident that your agent will be able to carry out and honor your health care wishes, even if he or she may not agree with them? (For example, if it’s your desire that your agent “pull the plug” if the situation arises, will your agent actually be able to follow through with the action?)
• Will your agent be persistent in making sure that your wishes are followed? Will your agent be willing to speak up on your behalf if he feels that your wishes are not being honored?
• Have you talked to your potential agent and is he/she willing to take on the responsibility?

I hope these considerations help you take action on this very important decision.

This article was originally included in our email newsletter on August 21, 2009. It may have been edited somewhat from the version that was originally emailed, so be sure to sign up in the upper right corner of our website to make sure you are getting our email newsletter hot off the press!

With all of the health care talk–as well as the debacles left behind by recent celebrity deaths–we’re hearing a lot about these:

• Will
• Living Trust
• Guardianship
• Probate

While this is a great opportunity for the media to educate the public on these important legal issues, the truth is often getting mangled. Furthermore, for most of the public, the information is confusing, stressful and they would just rather not hear about it.

So let me clear up the confusion, as one who deals with this on a *daily* basis…

Let’s start with the basics. Typically, in North Carolina, when a person with assets over $20,000 ($30,000 in certain instances) passes away, their assets will be handled in one of three ways:

(1) If they had no will, their assets will be distributed as mandated by the state statutory law through a court proceeding called probate,

(2) If the person had a valid will, the estate will still have to go through the probate process, but the court will carry out their wishes as stated in their will,

(3) If the person had a valid living trust (and their assets were re-titled in the name of their living trust–this is called “funding”), their wishes would be carried out in private, without the court’s involvement.

So … why does it matter to you?

The answer to this question depends on how much you care about what your loved ones will have to deal with after you are gone and how much control you want to have as to who gets what, and when and how they get it.

If you do nothing, you get no input on any of these questions and the court and one of your eager family members/friend/creditor who petitions the court will make these decisions on your behalf through a process called probate. Why do you care about probate? Often, the probate process can take 9-18 months and can be extremely costly. Your loved ones may have limited control and access to assets, it’s stressful for your family, and the process is completely public. The probate process can often lead to squabbling between family members and airing of the family’s dirty laundry.

If a person leaves a valid will, it will still have to go through the probate process described above and the headaches that go along therewith, but the court will have the benefit of knowing how you want your affairs handled. Instead of relying on the laws of intestate succession (which is the law that distributes your assets to your family members in the order of their relation to you–you can read more here), the court will pass on your assets to the specific people you have identified in your will.

Through a valid will, you can control WHO gets your assets, but you will have no control as to HOW and WHEN they get it.

A living trust (that has been properly funded!), on the other hand, gives you more control and offers significant protection to your family. If you are working with an attorney who has expertise in this field, you can control WHO gets your assets, WHEN and HOW they get it without the court’s involvement. Even better–with a living trust, it is a private administration and can generally be handled in a short period of time. Furthermore, a living trust can incorporate a lot of other great protections including protection from taxes, creditors, predators, medical catastrophe, divorce, remarriage and more.

You may be asking yourself: why would someone ever do a will instead of a living trust? Typically, a person will choose a will over a living trust for one of two reasons:

(1) they don’t know the difference between the two or
(2) the perceived “cost” of doing a living trust.

There are some obvious advantages to doing a living trust over a will, but starting with anything is better than ending up with nothing. If you are not yet ready to make a leap into the world of living trusts, a basic, will-based estate plan is a starting point. In addition to giving the court direction about how you want your assets distributed, every estate plan should also include:

(1) an advance health care directive, which identifies the person(s) that will make health care decisions for you, if you’re incapacitated, and expresses your wishes regarding health care treatments;

(2) a durable power of attorney, which identifies the person(s) that will make financial and legal decisions, when you can’t; and

(3) if you have children, it should also include a Children’s Safeguard Plan, naming both short and long term guardians to care for your children in the event of an emergency, as well as clear and specific directions to those guardians about how you would wish your children to be raised in your absence.

While we all care about what happens to our assets, every person over the age of 18 needs to have an advance health care directive and durable power of attorney (this includes adult children heading off to college!).

I hope this clears up the confusion…

If you’d like to read a little more about these documents, here are some links to past blog articles that go more in depth:

What Is A Trust?

Parents: 13 Reasons Why Trusts Aren’t Just For The Wealthy

What Happens If I Die Without A Will?

Problems With Intestacy

What Is A Will? Introduction to North Carolina Wills

What Is Estate Planning?

Two Legal Documents Every Adult Needs: Part 1

Two Legal Documents Ever Adult Needs: Part 2

We’re here to help!