As longtime estate planning and administration attorneys with strong roots in Los Altos, we address issues in this column and answer questions that come up often in our practice. This may involve pre-death planning, post-death administration or gift, estate or property tax issues.
One of Jean’s clients, Bob, called recently and informed her that he had been diagnosed with an aggressive form of cancer. This type of call is one of the most difficult to receive in our practice as estate planning attorneys. Yet, at the same time, we are grateful that we can be of service at a difficult time in a client’s life.
Jean and Bob scheduled a meeting to review his estate plan to confirm that the plan still reflected his wishes. We talked about changes in the lives of his children and the options to address these changes in his estate plan. We reviewed the successor trustees named in his living trust, the successor agents named in his financial and medical powers of attorney, and the distribution of his assets upon his death under the living trust and under his life insurance and retirement account beneficiary designations.
We also reviewed a current list of his assets and their values, and Jean talked to him about changes in the law since he last reviewed his estate plan. We reviewed the title to his real estate, bank accounts and other assets to ensure that the probate court would not need to be involved in the administration of his estate at his death. These are the typical topics we cover in an estate plan review.
Given Bob’s health situation, though, his end-of-life decisions warranted further discussion. He expressed confusion between the bright-pink form his doctors had given him to fill out, the “living will” his daughter kept asking him about and the Advance Health Care Directive (AHCD) he had previously signed. This is an area where clients are often confused (rightfully so), so I am sharing the information I provided to Bob, with the hope that people will better understand the different documents as well.
Differentiating among options
An AHCD is a document (previously referred to as a “living will”), in which you appoint an agent to make medical decisions for you if you are unable to make those decisions yourself. Your agent stands in your shoes and makes all of the medical decisions, guided by the preferences you indicate in the document, that you would make if you were able. In the document, you specify which treatments you want performed (or not performed), and under what circumstances, and when you would like life-sustaining care removed. You may also state your post-death preferences about autopsy, disposition of remains, organ donation and memorial services. You should provide a copy of your AHCD to your physician for your medical file.
By law, emergency medical professionals are required to administer life-sustaining treatments, like CPR, to you. These professionals are acting in the moment to save your life, so your AHCD typically will not come into play. The AHCD will be considered when you are hospitalized, and decisions need to be made about starting or withdrawing treatment; at this point, the doctor will seek direction from the agent under your AHCD. Fortunately, there are documents you can sign, in addition to the AHCD, if you wish to avoid resuscitation efforts in an emergency, such as a Physician’s Order for Life-Sustaining Treatment (POLST) or a Do Not Resuscitate (DNR) order.
Unlike an AHCD, a POLST requires a physician’s signature in addition to your signature. A POLST can translate the broad treatment wishes outlined in an AHCD into specific medical orders. It can detail your desire to avoid resuscitation efforts in an emergency, but it can also state your intention to decline life-sustaining treatments, such as intubation. A POLST is always printed on bright-pink paper so it can be found easily in an emergency. If circumstances allow, emergency first responders will look for a POLST on your refrigerator door or in your medicine cabinet.
A DNR, like a POLST, is a medical order that must be signed by a physician, but it only instructs emergency medical professionals to withhold resuscitation efforts if your heart stops beating or you stop breathing. A DNR applies in this limited scenario, while a POLST applies to a wider range of scenarios. If you have a DNR, you should keep it in your home in plain sight so emergency first responders will easily see it upon arrival at your home.
This estate plan review, including the detailed discussion of end-of-life issues, allowed Bob to identify the changes he wished to make and, with Jean having a better understanding of Bob’s current goals, she was able to suggest options to Bob to accomplish his goals. Armed with knowledge about the end-of-life documents, Bob planned to speak with his doctor about the POLST and DNR. In the end, Bob expressed his peace of mind knowing that his estate plan, including his end-of-life preferences, would be updated and ready to be implemented, when necessary, by people he trusted. Having taken care of this important task, Bob is now free to focus his attention on his treatment. Bob is strong, and we are optimistic that he will beat cancer and live a long life.
Jean M. Kohler, Esq., and Victoria Kaempf, Esq., are attorneys-at-law with the Kohler Legacy Law Group, PC, in Los Altos. For more information, call (650) 474-0209 or visit kohlerlegacylaw.com.
