Another frequent question we get about Organ Donation is:

Aren't I too old to donate organs?

Many clients are joking when they ask but the misconception that their is an age limit for donation leads many who can and would be donors not to take the steps to volunteer. 

While there are diseases such as cancer and AIDS that prevent donation, there is no age limit on donors.  As doctors we have worked with have explained, if you have a critical organ failing that is difficult to match, the healthy organ of an 80 year old that is a decent match is going to be much better than what you have.  Matches at that age and above are not uncommon and save lives.  So don't write off your organs yet!

If you have more questions about organ donation, or are interesting in making your wishes regarding donation known and included in your disability and estate plan, contact us for a free 1/2 hour consultation.  We can be reached at (206) 459-1908 or info@phinneyestatelaw.com.

One issue that we encourage all clients to address is their Advanced Health Care Directive is whether or not they are willing to be an organ or tissue donor.   As a result we get a lot of questions and wanted to try to answer some of the most common here including:

How Needed is Organ Donation?

As of July 2012 there are currently 114,712 Patients Waiting for life saving organs.  Of those, 64,292 are Multicultural Patients who can be especially difficult to match and 1,737 are Pediatric Patients.  Each day, 13 of them will die because the organs they need have not been donated. Every 16 minutes, a new name will be added to that waiting list.

The good news is that 28,535 Organ Transplants Performed in 2011 from 14,144 Organ Donors.  In addition, more than 46,000 corneas were transplanted in 2011.

Long wait lists result from low rates of opt in to the donation process, the special circumstances required to allow organ harvesting, and the difficulting in finding safe matches for some patients. 

If you have more questions about organ donation, or are interesting in making your wishes regarding donation known and included in your disability and estate plan, contact us for a free 1/2 hour consultation.  We can be reached at (206) 459-1908 or info@phinneyestatelaw.com.

In our last post we gave recommendations about treatment choices that are helpful to add to an advanced health care directive.  But working with families in the middle of health care emergencies we know that those are not the only choices agents get asked to make.  So when working with clients on their advanced health care directives I encourage them to give guidance as well such as:

o   I want my doctor to give me enough medicine to relieve my pain, even if that means that I will be drowsy or sleep more than I would otherwise.

o   I want my doctor to give me enough medicine to relieve my pain, but I want my pain medication reduced frequently to allow me moments of lucidity.

o   I want my Health Care Agent to explore alternative medicine treatments.

o   I want to be kept fresh and clean at all times.

o   I want to have personal care like shaving, nail clipping, hair brushing, and teeth brushing as long as they do not cause me pain or discomfort.

o   I want to have people with me when possible.  The visitors that would be most meaningful to me are: ___________________________________________________________________________________

o   I want to have my hand held and to be talked to when possible, even if I don’t seem to respond to the voice or touch of others.

o   I also want to have religious readings and well-loved poems read aloud when I am near death, such as: __________________________________________________________________________________

o   If I am alone and awake I would like to have music or books on tape playing, such as: __________________________________________________________________________________

o   I want to have pictures of my loved ones in my room.

o   I want to have flowers or live plants in my room.

o   I want to have a hospice care and other palliative care provided as soon as appropriate..

o   I want to be treated at home if possible.

o   I want to have the members of my faith community told that I am sick and asked to pray for me and visit me.

o   I want to have others by my side praying for me when possible.

o   I do not want to have politicians or clergy involved in my health care choices

o   I do not was clergy visiting me.

We have had clients select a host of mixtures of these instructions.  Often selecting them can feel strange, especially if the client is currently healthy.  It can feel controlling or demanding.  But the reality is that we have never had an agent tell us they had too much information about what they do.  What makes the job hard and encourages conflict is the agent and others involved not knowing what the right thing to do is for that specific patient.

If you would like help drafting an Advanced Health Care Directive that is right for you, contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com

In previous posts we have discussed how to select and document your choice of who should serve as your Health Care Agent if you should loose the ability to provided informed consent for your own health care choices.  That is without a doubt the most important single step you can take in make a plan for your future possible medical disability but there are other steps that can and should be taken as well and one of the most important is drafting an Advanced Health Care Directive.

An Advanced Health Care Directive, as the name suggested, provides guidance to your Health Care Agent and Doctors about what kind of health care choices you would want made for you in difference circumstances.  These documents are often referred to as "living wills."   In Washington the statute that allows for the creation of Advance Health Care Directives is RCW 70.122.  The statute requires that the directive be executed while the agent is still capable of make their own health care choices and be witnessed by two witnesses who are not close family members or health care providers.  The statute also places restrictions on the application of Advanced Health Care Directives when patients are pregnant.

Many hospitals have free Advanced Health Care Directives that address a few limited forms of life support but much more detailed directives can be done with an attorney and the more detailed guidance is usually much more helpful to families.  An attorney can also make sure that the witness rules are followed as forms provided in hospitals are often witnessed by inappropriate witnesses that can render them invalid. An attorney can also ensure that added language is put in the directive to make it effective in other states that have different execution requirements.

If you would like to schedule an appointment to develop an advanced health care directive contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

FAQ: Does my Health Care Agent need to be local?

There is no legal requirement that you health care agent be someone who lives near you.  However, filling that role long distance can be a challenge so finding someone who lives nearby is always a plus.   But location is just one factor among many.  

When considering distance it is important to remember that the real issue with distance is how quickly they could be at the health care facility interacting directly with the doctors providing your care and giving meaningful directions.  Factors for that could include travel time but might also include how much notice they would need to leave their job and family responsibilities in a crisis.  A single sister with a flexible job in San Francsico might be a better bet on that front that a single mom with young children in Pasco who can't get off work without several weeks notice. 

It is also important that you don't let this factor alone trump all the rest.  It should be the best person serving in this role not only the closest.  If in doubt, it is possible if working with an attorney to have an interim agent appointed who can serve until the best agent can be at the care center.  That might be a local friend or family member who could be in communication with the permanent agent and be gathering information and making imminent decisions until the agent can really assess the situation on their own. 

If you have questions about how to select and assign the best health care agent for your unique situation, please contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

In our practice we encounter a lot of families struggling to take care of both either own children and aging parents.  One challenge that we hear about a lot and struggled with in our own family is how to explain dementia to a small child.  The silver planet newsletter this week has a good article for care givers on this very topic.

Jamie's grandmother has Alzheimer's and our daughter visits her once a week.  For now the visits are positives for both of them but as she gets older she is starting to have more questions about why her GeeGee forgets things or why other people at her memory care facility act in ways that might seem strange.  Our policy has been to be honest and low key and so far she has followed suit but we have also decided that if we ever arrive on a bad day that it is fine to cut a visit short.   We have also noticed that a visit plan - like bringing an art project gift or sharing a new song - can provide a nice in the moment focus that makes things less stressful for everyone. 

Care giving for a loved one with dementia is full of these challenges.  As attorneys, our job is to make sure the legal logistics of this situation are handled in a way that provides the maximum independence and respect for the individual and the minimum in hassles and conflict for care providers.  That said, we also understand that the legal issues surrounding care are just part of a much bigger and more complex issue.  We view it as part of our job to really understand the whole picture of what our clients are facing.  That allows us to provide referrals to assistance and make sure that he legal solutions we offer are truly a match to the families needs.  If you would like a free half hour consultation with one of our attorneys to talk about your needs as a caregiver, please contact us at (206) 459-1908 or info@phinneyestatelaw.com.

Earlier this month, Division II of the Washington State Court of Appeals issued a published opinion in the trust administration case of Casterline v. Roberts.  

The case involved an adult daughter who had been named as the trustee of her mother's revocable living trust.  She used her role as trustee to spend a large sum of her mother's money to purchase property and build a house for herself with the stated but never realized intention of having her mother live with her. 

Upon the petitioning of the mother's other children, a professional guardian was assigned for the mother who sought to put a lien on the house to recover the mother's money only to find that the daughter had already transferred the property and her other real estate to her husband and brother-in-law via quit claim deed for no consideration.  The court allowed the guardian to put the lien on the home anyway under a theory of fraudulent transfer and found that the homestead exemption did to apply to the home because it was bought with ill gotten resources.  The daughter appealed and the court upheld the lower court's decision.

While much of case focuses on the ins and outs of liens and exemptions, it also contains some good reminders about the meaning of fiduciary duty that can be helpful to anyone serving as a trustee or attorney-in-fact for a parent. 

It is not uncommon in our experience for aging parents to prefer to live with adult children if possible over living in a nursing home or other institutional setting and that often involves costs to the children that can properly be paid for by a trust or through a power of attorney but only with great care - which was not taken in this case.  The court found that if the daughter had really intended to have her mother live with her she should have segregated her mother's funds from her own and protected her mother's interest by providing her with a secured interest in the house - which would have prevented the very kind of self-serving transfer the daughter later engaged in.  While court isn't specific, it appears that to avoid the breach the trustee could have either put the trust directly on the title of the property to reflects its percentage investment or could have been given a promissory note backed by a deed of trust. 

Moreover the court makes it clear that any self-dealing and co-mingling of assets can be a breach of fiduciary duty that would result in a fiduciary being removed even if the money is eventually replaced as the trust suffers no losses.  All to often we find that people get "sloppy" with powers of attorney and revocable trusts because, unlike guardianship or court supervised trusts, there are usually not annual accountings or reports that need to be affirmatively produced for the court each year.  That lack of oversight is part of why these are less expensive ways to assist a disabled loved one but it should not be viewed as permission to cut corners by creating joint accounts, failing to keep keep funds segregated, or failing to keep adequate records of spending.  The facts of the Roberts case suggest that this fiduciary did not have her mom's best interests at heart and clearly should have been removed. But we have also seen very well intentioned and loving adult children get challenged and even removed from their parents' care because family conflict erupts and they have not bee doing a good job of keeping funds separate and accounted for.  

If you are serving as a trustee, attorney-in-fact or other fiduciary and what advice how to best protect you and your loved ones, please call us to schedule a consultation at info@phinneyestatelaw.com or (206) 459-1908. If you are concerned that you or a loved one is being taken advantage of by a current fiduciary and want to understand your options for responding, please contact us as well. 

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.