The United States Supreme Court issued an opinion on Monday that addressed whether Social Security Survivors' benefits were payable to posthumously born children who were conceived after their father's death. 

The case involved twin children conceived by Karen Capato through in vitro fertilization after her husband's death from cancer.  Her husband had preserved his sperm after being diagnosed with cancer because he feared the cancer treatment would make him sterile. He died shortly afterwards and his wife conceived the twins about 18 months after his death. She applied to the Social Security Administration for survivors' benefits for the children. She had won her case in the lower federal appellate court, but the Social Security Administration appealed to the U.S. Supreme Court. 

The justices in this case examined several sections of the Social Security Act. The court found that while the Capato children met the definition of child under the act, they didn't meet the act's requirements for family status in order to qualify for survivor benefits. One of those requirements was whether the children could inherit under the intestacy law of their father's residence at death. Florida's law permits children born posthumously to inherit only if they were conceived during the father's lifetime.

It might seem likely a rare circumstance that would require such a ruling but PSB News Hour reports that there are currently more than 100 applications for survivor benefits pending with the social security administration from posthumously conceived children.  Whether is decision will apply to them will depend heavily on what state their deceased parent resided in at the time his death.  In 2011 Washington State addressed the issue of posthumously born children in RCW 26.26.730 but determining that If an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm, or an embryo, the deceased individual is not a parent of the resulting child unless the deceased individual consented in a signed record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.

The decision in the Capato case is silent as to whether such a record existed but it seems unlikely since such an option isn't contemplated under Florida Law but it would likely be the deciding factor for children conceived after the death of a parent who was a resident of Washington State at death.

If you have questions about the rights of posthumously born children or other circumstances raised by non-traditional family relationships, please contact us for a free consultation at (206) 459-1908 or email us at info@phinneyestatelaw.com.

On May 8, 2012 the Washington State Court of Appeals, Division II issued a new published opinion, Witt v. Estate of Young, which held that claims for quasi-community property by partners of the deceased who were in intimate and committed relationship are not subject to the creditor claims time limits and can be brought, most properly as a challenge to the inventory anytime until the probate is closed. 

In the Witt case, the deceased's long time partner filed a creditor's claim in her late partner's probate holding that all the property was quasi-community property and therefore should go to her.  The Personal Representative of the Estate denied the claim with a notice that any challenge to the denial must be made in 30 days.  More than 30 days late, Witt filed a complaint against the Estate in Superior Court for Partition of real and personal property.  The Estate moved for Summary Judgment to have the complaint dismissed on the basis that she had missed the thirty day window for making a challenge to the denial of her creditors' claim. The trial court declined to dismiss the action and the Estate appealed.

The Court of Appeals made on factual determination of whether the property in question would be covered by the quasi-community property rules that allow a court to treat property earned by either party during an intimate and committed relationship as analogous to community property earned during a marriage.  It left that question to the trial court.  But it did find that such a claim is really a challenge to the inventory of the Estate and not a claim for debt owed by the decedent and so isn't a creditor's claim and isn't subject to the creditor's claim time limits.  The court acknowledged that Witt had initially brought a creditors claim but found that her having done so did not preclude from bringing a more proper claim at a later date.  The court also went out of its way to make it clear that such a claim would need to be brought before the probate was closed or it would be barred.

The case provides some helpful guidance to both non-married partners who fail to do proper estate plans and personal representatives of their partner's estates about how these claims should be brought and the timelines that govern them.  This was important because while the court has been consistent and often generous in awarding these claims on an equitable basis they have come before the court in a variety of manners leaving practitioner frequently perplexed about how to properly introduce such a claim and proper way to accept or reject such claims.   As a practical matter, by channeling these claims in to the TEDRA process for challenging inventories the court has also created more generous timelines and enhanced incentives for resolving these disputes through alternative dispute resolution presumably with the hope of having more of these heavily fact intensive cases settled by the parties rather than litigated through the courts.  It is also an important reminder to personal representative who are administering estates were such a claim is possible not to let estates linger open longer than necessary as it will increase the time that these challenges can be brought and to be very careful about making any preliminary distributions before closing the estate where any possible claim could be made by an unmarried partner. 

Perhaps its best warning is that couples who are in long term, committed relationships are really best served and best taken care by careful planning before death, ideally including powers of attorney, co-habitation agreements, and wills that spell out what the plan is with regard to the creation of quasi-community property, who should be in charge of crucial life choices, and where assets should flow at death.

If you have lost a partner and want to better understand your possible rights to quasi-community property, or managing an estate that might be subject to such a claim, or are in an non-married committed relationship and want to plan to avoid this kind of potentially ugly and expensive mess at your death, please contact us to schedule a free half hour consultation at info@phinneyestatelaw.com or (206)459-1908.

Phinney Estate Law has recently changed and expanded our hours.  We are now available by appointment Monday, Wednesday, Thursday and Friday from 10 am to 4 pm and Tuesdays from 10 am to noon.  We hope these new hours will allow us to be more available to clients.  To make an appointment, please contact us at (206) 459-1908 or info@phinneyestatelaw.com.

Previous posts have explained that the only requirements of a health care agent are that they be at least 18 years old and not be your doctor or an employee of your health care provider unless they are also a member of your immediate family.  But there are a lot of people who pass that test who would not make good health care agents.  When picking your agent, I would recommend you look for someone with the following qualities, which we find make the best agents from working with family during actual medical crisis. Keep in mind that the importance of some of these factors may depend on whether your top priority is having your wishes honored or having your family feel best about the process.

1. Would be willing to serve in this role and speak on your behalf?
2. Would be able to act on your wishes and separate his/her own feelings from yours?
3. Lives close by or could travel to be at your side if needed? (If your agent is someone who lives far enough away that it would take them a while to reach your treatment facility, you may want to select a temporary agent to serve until your agent can reach you.)
4. Knows you well and understands what’s important to you?
5. Will talk with you now about sensitive issues and will listen to your wishes?
6. Will likely be available long into the future?
7. Would be able to sensitively handle conflicting opinions between family members and friends?
8. Can be an advocate in the face of an unresponsive doctor or institution?

Can't think of anyone in your life who is a perfect fit for all these factors?  Few clients can, but this list can help you create a meaningful pro and con list as you consider candidates.  The goal is to find the best agent you can.

To schedule a consultation to talk about the specific people in your life and who might be your best agent, please contact us at info@phinneyestatelaw.com or call us at (206) 459-1908.

Does my Health Care Agent need to be a member of my family?

Absolutely no!  While family members are the default decision makes for individual who do not make a plan for health care planning before they become disabled, the statute in no way favors family for the appointment of health care agents in their plan. 

While it is most common in our practice to see client appointing spouses, registered domestic partners, adult children, and siblings we also frequently see clients appointing friends, unmarried partners, and even professional fiduciaries to fill these roles.

Reasons to appoint non-family members vary.  Some clients do not have family.  Others have family but they are distant from them either geographically or emotionally.  They may have create families of choice that are different from their legal family but who are their true support system.  Some just want to spare their family the burden of making end of life choices. Whatever the reason, an appointment of non-family members is always only allowed and frequently appropriate. 

We frequently encourage clients to look beyond family, particularly when the only possible family members are parents.  Making the choice to end treatment for your adult child is difficult for a parent even when it is obvious to others that it is the choice the child would make if they could choose.  It may be fairer to that parent to place someone else in the position of making that ultimate choice.

If you would like to discuss options for your health care planning, schedule a consultation at 206-459-1908 or info@phinneyestatelaw.com.

NPR is doing a great series on families dealing with the care of elderly family members.  While the series focuses on a variety of legal, financial, and emotional issues, I was pleased to see their advice that families make their first step being setting up Durable Powers of Attorney with the help of legal counsel.  I do find that the lack of those documents creates the most fundamental problems for families trying to deal with both long term planning and emerging crisis.

Yes.  You can select as large a group of agents as you choose.  Some clients choose to select all of their adult children to serve as their health care agents. 

Many attorneys actively discourage their clients from selecting more than one agent at a time because it has the potential to make decision-making in crisis more difficult.  If there is more than one agent serving at any given time than there is always the possibility that they may disagree and/or give conflicting instructions. 

There are typically two solutions of to this problem.  One is to pick an odd number of agents and allow a majority of agents in agreement to overrule a minority that disagrees.  This allows for a relatively streamlined way for disputes to be settled.  The alternative is to require consensus among all the agents for all decisions.  The advantage of requiring consensus among agents is that it requires families to come to a joint decision and take joint responsibility for those decisions.  Otherwise there is a risk that one agent for example, one your adult children may simply be out-voted about the decision to try a treatment method and may harbor resentment against the other agents or even blame them, instead of your health crisis, for your death. 

Such resentments can, of course, still come up if you choose to make just one child an agent in the first place but, in our experience, they tend to be magnified if the minority opinion child has been given the agent role in the first place just to find that they are, in fact, powerless to make actual decisions.  Resentments can also be magnified where one of the agents has always felt a bit ganged up on by the others such as a black sheep sibling.  And it is almost always the child who is most geographically distant and/or emotionally distant from the parent who is the least likely to face the reality of a terminal illness or hopeless medical crisis.  They have simply had less time and information to come to terms with the situation and have had the least time to say their good byes or to achieve the sort of emotional closeness that they had hoped would eventually come with time. 

The disadvantage of requiring consensus is that it may take a while for the agents to agree among themselves or mediate their disagreement.  During that time you may either not be getting treatment that the majority of your agents think you should get or be getting treatment that the majority think should have been suspended.  In the end, it is possible that time, nature, and/or science may make the decisions for you while your family fights it out.  In addition, if everyone must agree then everyone needs to be in the loop and probably at the treatment facility.  For people whose agents have busy careers, competing family demands, or live far away that can become somewhat of a logistical nightmare.

We usually recommend that if consensus is required that it be the consensus of the agents present at the treatment facility in order to preserve some flexibility for the family.  But that may result in someone getting left out of the loop and out of the decision-making.  To a certain degree the decision about number of agents and methods of decision making may come down to how you balance in your own mind your desire to preserve family harmony and have everyone feel empowered in the process versus your desire to have your wishes respected or the best decisions made. 

In our experience, it works best if you can select one agent to serve at a time.  Other close family members or friends should, if possible, know who the selected agent is, and, if possible, have that choice communicated to them in as loving and affirming a way as possible.  (For example by explaining that the choice was not based on a lack of trust or love for the other possible agents but selected was based on who was able to come to the most doctors appointments with you now so that they would be ready in a crisis or who has the most medical experience.) 

Ideally all close family members should be given copies of your health directive as well so that they know what choice you have made and have an opportunity to process them and ask questions if necessary.  You may also want to talk to your selected agent and communicate any desires you might have about how they should informally consult your other family members and even your willingness to have decision-making slowed down to allow people to come to consensus where possible if that is your priority.  If you do decide that having more than one agent is what is best for your family, and frequently it is, you need to take extra care to draft an advance health care directive that will provide guidance.  Relying on one person’s best judgment is hard enough.  Relying on two people’s best judgment gets even more tricky.

If you want assistance drafting a Durable Power of Attorney for Health Care that best meets your needs, contact us for a free consultation at info@phinneyestatelaw.com or tel. 206-459-1908.

While there are many special considerations in drafting advance health care directives for people over 65, the language of your durable power of attorney for health care will likely look very similar to one drafted for someone younger. 

The main differences may be the considerations of the age and health of your agents.  Often people select spouses, siblings or close friends of their own age to serves as their agent.  That may still be the best selection for your first and perhaps second choices. 

However, it is important to remember that as we age the chances of our developing dementia or suffering a stroke that limits our ability to update our plans statistically increases.  That means that it may become difficult, if not impossible, to update your planning documents as agents in your own age group develop similar health issues. 

If you have selected a parent or other older friend or relative, it may be time to make a replacement. It may also be time to add a second back up agent and to try to select some younger that you.  It may be time to consider adult children, nieces or nephews, or children of close friends. 

As with any selection of agents you should make sure that they are going to be willing to have a frank conversation with you about your wishes and will be available to serve in the role.  You should also begin to more regularly review your documents so that you can make corrections if any of your selected agents pass away or develop health conditions that would limit their ability to serve. 

It may also be time to start thinking about being more open with your agents about your health than you might have been in the past.  If you are primarily relying on adult children to serve as your agent, you may need to start sharing health information that you would otherwise choose to keep private.  Without solid information, too often children have an unrealistically rosy view of their parent’s health and that may lead them to make less than ideal choices if a crisis strikes and they have been out of loop.

Yes!  It is common to think of a durable power of attorney of health care as something only needed as people get older and face chronic health problems.  But the truth is that, for the young, temporary disability is the crisis they are mostly likely to face and one most in need of proper planning.  Statistically, if you are under 65 years of age, you are six times more likely to become disabled than to die. 

The young can face life threatening illness such as cancer that often involve periods of treatment that may necessitate others making medical choices for them and that can come out of the blue.  They are also the age group most likely to be in accidents such as car accidents or sports accidents that can render them unconscious and in need of medical care.  Even an eighteen year old who has left home to attend college can very easily find themselves in a car accident or in a serious sports injury.  Therefore it is important that the young and healthy consider taking the time to prepare a Durable Power of Attorney. 

Moreover, as they do the planning they should think of the decisions and decision makers they would want now, not merely when they are old and chronically ill.  We usually recommend that our younger clients draft their documents with an eye to decisions that they would want made over the next ten years if they were in an accident or struck with a sudden illness.  We remind them they can and should review their documents and make changes as they grow older and/or are diagnosed with a serious illness.