Posts

Pick up the November Book Club Read: Waiting for Eden

,
leaf on top of book

Bust out those library cards or fire up the e-reader, we have your latest and greatest GoFisch Book Club read for November! We hope you enjoyed the October pick, but now we’re shifting gears to a fictional tale with some salient real-world estate planning tie-ins…plus it’s a National Book Award Finalist, so you know it’s good! Waiting for Eden, by Elliot Ackerman, features a wife who is perpetually present at the bedside of Eden, her husband, when he comes to after being in a coma for years. Eden was badly injured while serving in the marines in the Middle East. When he becomes conscious after his coma, the bulk of his body is marked with the aftermath of burns, and he’s unable to talk, hear, or see. He’s never met his daughter and  Mary, the wife, has to grapple with the decision to extend Eden’s semblance of a life further or turn off the life support that keeps him immobilized. As the story unfolds, truth about the marriage come to life and we’re forced to face the question of what makes a life a life? What makes it worth living?

The primary themes are love, marriage, and tough health care choices when someone’s faculties are reduced to next to nothing can be heavy. But, they’re also super important consider. Ackerman created military fiction without it being a straight “military” storyline. (But, if you do like military-related reads, you get a dose of it from the perspective of a friend of the main couple who died in the same war accident Eden was injured in.)

waiting for eden

The life/death situation presented in Waiting for Eden is rare, and hopefully you and no one you know ever has deal anything remotely similar. But, if you are in the position of making difficult health care decisions for a loved one, it’s better to know exactly what their choice and intent would have been had they not incapacitated. This is where the health care power of attorney comes in.

6 Things Iowans Should Know About Health Care Power of Attorney

About Health Care Power of Attorney

A health care power of attorney (PoA) is a legal document that allows you to select the person (your “agent”) that you want to make health care decisions on your behalf, if or when you become unable to make them for yourself.

Once your health care PoA goes into effect (typically most people elect to have this be the case only if an attending physician certifies you are unable to make medical decisions independently), your agent will then be able to make decisions for you based on the information you provided in your health care PoA. If there are no specifics in your health care PoA relating to a unique situation, your agent can and should make health care decisions for you based on your best interests. Obviously, the person you select as a your health care PoA agent should be someone in whom you have the utmost trust.

Equally important, your agent will be able to access your medical records, communicate with your health care providers, and so on.

Keep in mind your health care PoA isn’t just about end-of-life decisions; it can cover many types of medical situations and decisions. For instance, you may choose to address organ donation, hospitalization, treatment in a nursing home, home health care, psychiatric treatment, and other situations in your health care PoA.

GoFisch Book Club Flyer

Living Will

For people who feel strongly about not wanting to be kept alive with machines, specifically covered in a document that can be thought of as a part of your health care PoA known as a living will.

All Iowans are special and unique and have special and unique issues and concerns. It’s completely up to YOU as to what’s contained in your health care PoA. You name the agent(s). You decide what medical decisions will be covered and how. It’s all up to you.

What a Living Will & Health Care Power of Attorney Mean for your Medical Care

If Eden would have had such a document executed before he went to war with Mary named as his representative, the situation still would have been tragic, but the decision less disconcerting. But, the book probably would have been less of a captivating tale of friendship, love, and what it means to be human. If you can, however, save your loved ones confusion and uncertainty, plan ahead for the unexpected with a quality, clear health care power of attorney.

What are you thoughts on Waiting for Eden? Share your thoughts with other readers in the comments below or with GFLF on Facebook, Instagram, or Twitter!

/by

Estate Planning Event at Iowa State Bar Association

, , ,
red chairs in conference room

Undoubtedly knowledge is power when it comes to understanding how different laws directly affect you. Indeed, living in a modern society mean that an interplay of laws govern pretty much every aspect of our lives in one way or another—even when it comes to death. That’s why I’m dedicated to breaking down terms (like in my “legal word of the day” series) and explaining processes (like how to form a 501(c)(3) in Iowa) related to GFLF’s core services. Because even if you’re not an attorney, that doesn’t mean you shouldn’t/can’t learn about the interplay of different laws  Similarly, I think it’s important to get the word out about events in the community that can help grow knowledge on important topics like estate planning.

The Iowa State Bar Association (ISBA) announced they’re producing a seminar series called the “People’s Law School.” The first public information event will focus on three super important estate planning elements:

While the seminar is being billed as one for “older Iowan issues,” I have to remind that everyone needs an estate plan! Even young professionals and definitely married couples. Definitely people with kids and people with pets! Even college students can benefit from putting a power of attorney in place. And, especially working and middle-class folks need a up-to-date estate plan.

What We Talk About When We Talk About Estate Planning

At the seminar, attendees can have a living will or medical power of attorney form notarized at the event if they bring their completed documents.

The session will be held 5:30-7 p.m. on September 19 at the ISBA Headquarters in Des Moines. Interested? You can register online here.

According to their website, the ISBA will “identify other topics of public interest and host similar seminars in the future,” so be on the look out for other upcoming opportunities to learn more about the law as a part of your life.

If you’ve dropped all the excuses and committed to making your estate plan happen, that’s great! It’s easy to get started with my free Estate Plan Questionnaire. Questions or want to discuss your estate? Don’t hesitate to contact me via email or by phone at 515-371-6077.

/by

What a Living Will & Health Care Power of Attorney Mean for your Medical Care

, ,
xray-doctor

One of the six main parts of an estate plan that every adult Iowan should have is a health care power of attorney (POA). This legal instrument allows you to designate the person that you want to make health care decisions for you in the chance that you become incapacitated and unable to make such decisions for yourself.

6 Things Iowans Should Know About Health Care Power of Attorney

Who can be my Health Care POA Representative?

The person you pick is your agent/representative for purposes of health care decision-making and should be (a) a competent legal adult; (b) someone you trust would make health care decisions that align with your best interests; and (c) someone who agrees to the role. Some people elect to have the same person be their designated proxy for both the health care and financial powers of attorney. Other folks choose two different individuals for these roles.

It is highly advised to name an alternate representative in case the person you appoint becomes unable or unwilling to act on your behalf.

The law does not allow your health care designated agent to be a health care professional providing health care to you on the date you sign the document. It also cannot be any employee of the doctor, nurse, or any hospital or health care facility providing care to you. The only exception is if that employee is a close relative.

What types of Health Care Decisions does a POA Cover?

A health care power of attorney can govern any kind of decision that is related to your health that you allow. You could, for example, limit your representative to certain types of decisions. Or, you could allow your representative to make decisions for any type of health care choice/issue that may arise. This includes decisions to give, withhold, or withdraw informed consent to any medical and surgical treatments. Other decisions could relate to psychiatric treatment, nursing care, hospitalization, treatment in a nursing home, home health care, and organ donation.

 

Assorted pills

When Would I use a Health Care POA?

A health care POA comes into play only when, in the certified and recorded opinion of your attending physician, you are unable to make health care decisions for yourself. Your named agent is then able to make decisions regarding your care, receive access to records, communicate with health care providers, and other important actions that would otherwise be off limits.

What is a Living Will?

The name of this document is bit of a misnomer. Sometimes referred to as an advanced directive, a living will is best thought of as a written declaration that informs health care providers of your desire to NOT have life-sustaining treatment continue if you are diagnosed as terminally ill or injured, are unable to communicate your choices regarding your treatment, and such treatment would simply prolong the inevitable and imminent process of dying. You may consider a living will an important part of the whole that is your health care power of attorney document

Under Iowa’s Living Will Law, a living will does not permit withholding or withdrawing food or water unless they are provided intravenously or by a feeding tube. Additionally, medication or medical procedures necessary to provide comfort or to ease pain are not considered life sustaining, and may not be withheld.

Because of the sensitive nature of the living will, before signing the document make certain the provisions included align with your philosophical and/or religious beliefs and wishes.

Important Definitions

“Life-sustaining treatment” is defined as the use of medical machinery such as heart-lung machines, ventilators, tube feeding, and other medical techniques that may sustain and possibly extend your life, but which won’t, by themselves, cure your condition.

“Terminal condition,” under Iowa law, is defined as an incurable or irreversible condition that without life sustaining procedures, results in death within a relatively short time or a comatose state from which there can be no recovery, to a reasonable degree of medical certainty.

In all states the determination as to whether you are in such a medical condition is determined by qualified medical professionals—typically your attending physician and at least one other medical doctor who has examined or reviewed your medical situation. The decision must be recorded in your medical records.

 

doctor stethoscope

How do I Make a Living Will?

This is one of the documents I include in the estate planning packages for my clients, if they so elect to have one. The first step, at least when working with GFLF on your estate plan, is filling out my Estate Plan Questionnaire, which is where you can choose “yes” or “no” for creating a living will.

In terms of qualifications, you must be a competent, legal adult who is age 18 or older. The declaration can be signed in the presence of two witnesses (who also must be 18 or older and should not be family members if at all possible) or a notary public. Note that health care employees responsible for your care cannot be the witnesses.

Of course, the declaration for a living will must be signed voluntarily and without coercion.

What do I do Once I Sign a Living Will?

The original living will must be given to your doctor in order for it to be acted upon. Therefore your health care designated agent should have access to the original if the time comes when it is need.

Under Iowa law, it is your responsibility (and therefore your health care proxy if you are unable or incapacitated) to provide your attending physician (the doctor who is primarily responsible for your care and treatment) with the declaration. This attending physician might not be your family doctor, but it’s smart to give a copy of the living will to your family doctor to have on file. In addition, the living will’s existence should be made known to members of your family.

What Happens if I Change my Mind About my Living Will?

A living will is revocable at any time. You may revoke the document easily by notifying your attending physician of your intent to do so. This communication of intent will then be recorded by your attending doctor as a part of your medical record. If this is the case I also recommend contacting your estate planning attorney and health care designated agent to communicate your change. Depending on what is written in your health care POA that document may need revisions or additions, which is something your estate planning attorney can facilitate.

surgeons walking down hallway

What About a Living Will Made in Another State?

This is a good question as each state has its own laws related to living wills and such decisions. A living will made in another state will be valid in Iowa to the extent that the declaration aligns with Iowa laws on the matter.

That being said, it’s best to have a current living will declared in the state you reside in and are most likely to receive care in. So, if you signed a living will while living in Colorado and then move to Iowa, it’s best to sign a new living will that is specific to Iowa’s laws. (Plus, moving across state lines is one of those big life changes that mean you should update your entire estate plan to be sure it’s valid under your new home state’s estate, property, and inheritance laws. So, you may as well update your living will while you’re at it!)

What Happens if I don’t Have a Living Will?

Without a living will stating your directives, others will be forced to decide if life-sustaining procedures will be used for you. (Typically this is a situation one does not want to place on their loved ones.) If you have a health care power of attorney, that representative will make the decisions regarding life sustaining treatments and procedures.

If you also don’t have a health care power of attorney in place, Iowa law states that the attending physicians and the first person available from the following list will make such health care decisions for you  in front of a witness:

  • A guardian, if applicable (Note that a court appointed guardian must obtain court approval before making this decision.)
  • Your spouse.
  • Your adult child (or a majority of your adult children who are available).
  • Your parent or parents.
  • Your adult sibling.

Disposition of Final Remains: Save your Loved Ones Headache & Ambiguity

Communication is Key

Just like it’s important to discuss your estate planning decisions with your executor and family, it is equally important to discuss your health care and life-sustaining wishes with the person who will be your agent. You may also plainly state directives on your health care power of attorney form such as “I want all available organs to be donated in the event of my death.”

Review and Get Started

Whew. That was a lot of important information in one blog post. Let’s review how the two different but compatible documents of health care power of attorney and a living will:

  • Your health care power of atttorney gives a proxy your designate and trust the authority to make medical decisions for you if you are unable to make them for yourself.
  • The living will is a document specifically directing your physician that certain life-sustaining procedures should be withdrawn or withheld if you are in a terminal condition and unable to decide for yourself.

You can have a health care power of attorney document without having a living will. And, while not advised to not have a health care power of attorney document in place, you could technically have a living will without a health care power of attorney.

If you don’t have health care power of attorney or a living will in place, there’s no time like the present to make your decisions known and recorded well before the unexpected happens. Fill out my easy Estate Plan Questionnaire to get started. If you have any questions about either of these documents, don’t hesitate to contact me at gordon@gordonfischerlawfirm.com or by phone at 515-371-6077.

/by

Court Appointed Guardianship: What it is & How to Protect Yourself

, ,
senior citizen guardianship

Recently a friend sent me an article from The New Yorker, “How the Elderly Lose Their Rights.” (While a long read, it’s worthwhile.) The piece focused on the tragic case of a Nevada couple—Rudy and Rennie North—who fell victim to a court appointed guardian who failed (terribly) to put the senior victims’ best interests first and asserted the little known situation where “Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it.” At first this situation is a bit confusing. How can a couple, with grown adult children, be assigned as wards of a state-appointed conservator/guardian who is then in charge of making health, financial, and social decisions for the individuals?

Given the current and growing population of elderly in the U.S. the issue of court-appointed guardianship it’s an important subject. According to the Census Bureau, “residents age 65 and over grew from 35.0 million in 2000, to 49.2 million in 2016, accounting for 12.4 percent and 15.2 percent of the total population, respectively.” And, between 2000 to 2016, 95.2 percent of all U.S. counties experienced increases in median age.

senior couple at table

What is a Guardian / Conservator?

To be able to protect yourself against such a situation, let’s establish what a guardian and/or conservator actually does and what are the causes for a conservator to be appointed. One person may be both the guardian and conservator and can be combined into a single court action. (Note: these definitions are applicable in the State of Iowa. In some states the words have different definitions and a “guardianship” in Iowa may be considered a “conservatorship” under the verbiage of a different state.)

Iowa Legal Aid offers a clear definition of the two terms:

“In a conservatorship:

  • The court appoints a person (the conservator) to control the property (or estate) of a ward.
  • A conservatorship deals with the person’s financial decisions.

In a guardianship:

  • The court appoints a person (the guardian) to control the person of the ward.
  • A guardianship deals with non-financial decisions such as where the ward lives and what type of medical care the ward gets.”

For simplicity’s sake, for the rest of the article we’ll just say guardian/guardianship, but know that could also include a conservator/conservatorship.

How does a Guardian get Appointed?

A guardian may be appointed if a court finds an individual incapacitated, which can be due to varied conditions like mental disorder, physical or mental disability, chronic abuse of drugs and/or alcohol, or physical illness. Basically if the court is convinced that a person lacks sufficient ability or understanding to communicate or make decisions in their best interest they could appoint a guardian for the continued supervision and care of the individual.

The process is such that a petition is filed in the prospective ward’s state with information regarding the proposed guardian, the guardian and ward’s relationship (if any), and other info on heirs. Any person deemed “competent” can be appointed as a guardian, so that could include an adult child/parent, spouse, or friend. It could also be a professional guardian entirely unrelated to the ward.

two senior citizen women

The legal standing for guardianship immigrated over to the U.S. colonies from England and is based on an English statute that’s survived for over 800 years. The state holds the power of parens patriae, “a duty to act as a parent for those considered too vulnerable to care for themselves.” Because this power is of the states and not federally regulated, there are disparate record keeping standards, sealed court records, and no databases of collective figures at the local, state, nor federal levels.

Potential Dangers of Guardianship

Guardianship in the U.S. straddles a fine line between protection and exploitation.

One of the major tenants of the concept of guardianship is “trust.” And, it’s true that there are great guardians who certainly work in the best interests of their charges. Most people assume the role of a guardian for good reason (like caring for a parent), but there are also substantiated cases where victims (largely senior citizens) were subjected to physical abuse, financial theft, and neglect. In a 2010 report, “Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” the Government Accountability Office identified over 150 reported victims who had suffered a total of $5.4 million in stolen funds.

Guardianship has large potential for issues and consequences given the large quantities of people involved. Currently there over 1.5 million adults who live under the care of a guardian who is either a family member or unrelated professional. These guardians control an immense amount of assets to the tune of $273 billion. It’s also true that in the majority of states there are no qualifications to attain the status of guardian other than taking a course, having not declared bankruptcy recent, and not be convicted felon.

two seniors speaking on sidewalk

The American Bar Association published the statement that “an unknown number of adults languish under guardianship” even if they no longer have the need for someone to make decisions for them (or never did).

Another danger is that while guardianship could be terminated through a court hearing if it can be proved the need no longer exists, the ABA study also asserted the guardianship situation is typically permanent, leaving few ways out for the adults under care. Those who do try to fight against a court-appointed guardian often end up paying excessive amounts of money in attorney and court fees—some even going bankrupt in the process.

Additionally, the aging population of America places increased pressure on court resources which, in turn, can make it difficult for court appointmented guardians to have the optimal high level of oversight necessary. Thus, shady guardians can more easily slip through the cracks and continue to abuse the system and their wards’ assets.

How to Protect Against the Potential

It’s pretty safe to say that no one in their right mind would want a court-appointed guardian (particularly a stranger) to have control over your life. Especially in a way that they could legally:

  • Change your permanent residence to a more restrictive location.
  • Consent to withdraw life-sustain medical procedures.
  • Place restrictions on communications, visit, or interactions with another person.
  • Make decisions contrary to your wishes regarding general life in areas like recreational activities, clothing, and food choices.

As an example of the prospective consequences of these powers is how a guardian placing restrictions on whom their ward can interact with can result in isolating the ward from their family members. According to Elaine Renoire, a director of the National Association to Stop Guardian Abuse, a victims’ rights group, the top complaint she hears about guardians is how they can legally prohibit their wards from seeing or speaking to their loved ones.

senior citizen on bench

The following legal and estate planning tools are proactive measures you can take today to avoid the potential of being subject to court appointed guardianship.

Health Care Power of Attorney

Health care power of attorney is one of the six main documents all Iowans should have as a part of their estate plan. It allows you to choose a designated representative to make medical decisions on your behalf if you are to become incapacitated either temporarily (such as under anesthesia) or permanently. If you cannot express your medical treatment wishes clearly and coherently, your agent could then make such wishes be known on your behalf. The designated agent also retains the right to receive your medical record information that would otherwise be inaccessible as it is protected under HIPAA laws.

Financial Power of Attorney

Similar to the health care power of attorney, financial power of attorney is a legal document that designates someone to handle your financial decisions and take actions like pay bills, settle debts, and sell property on your behalf if you become incapacitated and unable to do this yourself.

Trust

The number of different types of trusts are practically limitless and a trust could be a valuable estate planning protection tool in some situations. A successor trustee could be named and the document could be used as a safeguard for financial protection.

woman walking down street with flowers

Proactivity is Key

By being proactive, you can be certain that someone you love and trust will be responsible with their guardianship powers and big/small life decisions, not the courts. Have these documents crafted by an experienced estate planner (not a DIY website) and keep them up-to-date as circumstances change. Luckily there are smart people in Iowa working toward policy change, such as the National Health Law and Policy (NHLP) Resource Center at the University of Iowa College of Law and their recent task force report citing 232 policy recommendations. But, the road toward substantial policy change is long and it’s best to have your own legal safeguards in place just in case.

Want to discuss guardianship further or get started on your powers of attorney documents? Contact me at any time.

/by