Ask Liza: Everyday Estate Planning

A recent study in the New England Journal of Medicine found that one in four elder adults need someone else to make decisions for them at the end of their lives.

"The results illustrate the value of people making their wishes known in a living will and designating someone to make treatment decisions for them, the researchers said," The Associated Press reports. "In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives.

As summarized in the LA Times: Those who requested limited care at the end of their lives received it most of the time. The study used data from the long-running Health and Retirement Study, which surveys adults ages 51 and older nationwide. In analyzing data from people ages 60 and older who died between 2000 and 2006, researchers found that of the 398 incapacitated people who had used a living will to request limited care at the end of life, almost 83% received it.

For a guide to making informed decisions regarding elder care, see Long-Term Care, by Joseph Matthews (Nolo).

This week President Obama issued a memorandum to Kathleen Sebelius, the Secretary of Health and Human Services, that asks the Secretary to use her rulemaking authority to require all hospitals that accept Medicare and Medicaid patients to respect the wishes of patients with respect to who should be allowed to visit them.

It directs that hospital rules should make it "clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability."

This is great news for couples in non-traditional relationships, as well as widows and widowers, and really anyone who needs the love and support of non-family members while ill. And it makes it especially important (although it has always been especially important) for those who want to designate loved ones as their health care agents to complete valid Advance Directives or Health Care Proxies so that these designations have the force of law.

Read more about advance directives in Nolo's article Living Will, Power of Attorney, or Advance Directive? .

One of the many weird experiences I had during my father's final illness was the tragic disconnect between my father's actual condition and the attitude of the doctors who cared for him. My father was emaciated, with a collapsed left lung, advanced coronary heart disease, and a chronic neurological condition that was causing his nerves to stop working. Bad, right?

But despite our repeated attempts to get SOMEONE in the ICU to listen to our requests for a discusssion about when it was appropriate to discuss palliative care (treating a patient's discomfort, but giving up on aggresive treatment of the underlying condition), we got nowhere. I mean it was like we were speaking a completely different language.

The one remotely sympathetic doctor promised us that if, "he felt he was just moving the pieces around he'd let us know." That was excellent, except 2 days later that doctor was out of the ICU rotation and we never saw him again.

And guess what? After almost a month in the hospital, "moving the pieces around" was pretty much all that happened. In the end, they discharged my father to a nursing home in worse condition that when he entered the hospital -- still with a collapsed lung and now unable to swallow. Pretty depressing. And still, the main doctor insisted my father was "cured."

What do they teach in medical school? Denial?

If you are caring for someone who is very ill, and getting nowhere with the doctors, find your local hospice and get their help. Don't expect the doctors to tell you when it's time. Find out if there's a palliative care program at the hospital and get in touch with them, aggresively if possible. (Sometimes the doctors don't want them involved, Argh. It's like the Twilight Zone.)

For a detailed discussion of hospice care, see Long-Term Care, by Joseph Matthews (Nolo).

From the Wall Street Journal comes a tale of how an elderly, well-educated man fell victim to fraudsters who lured him into writing checks for a variety of scams. In less than one year, he'd sent out $23,000 worth of checks -- despite repeated efforts on the part of his family to get local law enforcement and others involved. Finally, the victim granted his son a power of attorney to manage his finances -- but even then, he kept writing checks for scams.

Scammers were extremely effective in gaining his trust, preying on his isolation to gain access to his confidential financial information. Worse, once he had gotten involved in a few of them, his name ended up on a "Sucker List" that was sold to other scammers, leading to an avalanche of other fraudulent offers.

One scam, in particular, has gained in popularity: a fake check, purporting to be an advance payment for winnings to come. The victim cashes the check, sends the cash to the scammer, and then is on the hook when the check bounces a few days later.

If your elderly relative is getting such calls and offers, here are some helpful tips from the article:

• Put their cell phone and landline on the FTC's Do Not Call Registry at https://www.donotcall.gov/.
• Call the AARP's Fraud Fighter Call Center at 1-800-646-2283.
• Put scam mailings into an envelope and forward them to the Postal Inspector-Suspected Mail Fraud -- no postage is required.

For more information on elder fraud and how to prevent it, see Long-Term Care, by Joseph Matthews (Nolo).

In what's starting to seem like a series on the ways in which powers of attorney can cause heartache -- or worse, elder abuse -- comes a story out of St. Louis. The heirs of one of the last surviving Munchkins from the film The Wizard of Oz, Mickey Carroll (real name, Michael Finocchiaro), are suing his caretaker, Linda Dodge, claiming that she and others took advantage of the actor in his final years.

The heirs claim that Mr. Carroll, who died Thursday, May 7, signed powers of attorney transferring power over his property and health care decisions to Dodge when he was unable to understand what he was signing. They further claim that Dodge then kept him isolated, spent his assets, and kept the money that Carroll made from appearing at events.

Dodge counters that the dispute is just a "family squabble" and that she took good care of Carroll.

To learn more about financial powers of attorney, see Nolo's article Financial Powers of Attorney: Do You Need One?.

People often ask me what to do with their estate plans when they move to another state. Here's the answer: if you think you're going to be in that new state for a while, it makes sense to update your estate plan to reflect that state's laws.

It's not that your estate plan will be invalid in another state. With the exception of gay marriage (in some states), contracts signed in one state are valid in another. But it can create inconvenience for your heirs if they have to administer an estate under, say, California law, if a parent died while residing in Georgia -- especially if the kids live in Georgia too.

Also, powers of attorney, which are important legal documents granting another person the right to act on your behalf with respect to property and health care, are created by state law, and your rights, especially with respect to health care decisions, vary from state to state. For that reason, and additionally because banks and doctors like working with forms that they know, it's a good idea to at least create new powers of attorney if you move to a new state.

For a comprehensive guide to estate planning essentials, see Plan Your Estate, by Denis Clifford (Nolo).

The Seattle Times reports today that a man stands accused of systematically draining his 93-year old mother's bank accounts, racking up charges on her credit card, and mortgaging her paid-off condo. All after his mother had been hospitalized following a stroke.

While she was in a nursing home, he was, the prosecutors allege, spending her money on trips to casinos, country clubs, tanning salons, and his own health insurance, while leaving her nursing home bills unpaid.

How did he pull this off? Simple: She'd named him as her agent under a durable power of attorney the week before her stroke. With it he was supposed to be making sure that she was well-taken care of. But because that document gave him access to all of her accounts and no one was watching over how he used that authority -- allowing a nursing home bill of $37,000 remain unpaid -- he was able to, or rather stands accused of being able to, use that money for himself instead.

And the moral to this sad story? Be careful who you name to act on your behalf in the event of your incapacity. You really are giving that person a blank check.

Here's a helpful article by Ohio attorney Craig Matthews on how to avoid being the victim of power of attorney fraud: Elder Financial Abuse: Power of Attorney Scams.