We love you and want the best for you. Over the past few months, we’ve noticed some things that are concerning to us. It makes us wonder if we should begin giving you some extra help around the house.
We have found late notices and even shut off notices from the electric company and the water company; this makes us worry that your bills aren’t getting paid on time. Your filing system was always so organized, but now we find papers jammed in every which way. It’s hard for us to tell what bills have been paid.
You and Step-Mom have always kept a lovely home, but now there are newspapers and unopened mail piling up, and the yard hasn’t been tended to. The refrigerator has expired and rotting food in it.
And your car has a scrape along one side that we don’t remember seeing before.
We respect your privacy and we understand that it’s important to you to manage your household as you see fit. If there are some things that we could do to help lighten the load, we would like to help.
It would help us if we had a better understanding of how your finances are arranged, so that if we needed to step in and help out, we could do so easily. For example, would you like one of us to arrange it so that we can view your banking accounts online? That would allow us to help you balance your checkbook and avoid bank fees for returned checks. We could help you arrange for automatic payments for utilities, rent/mortgage, and insurance, so that you aren’t having to pay late fees. We could remind you to take the required distribution from your IRA this year; you know there’s a penalty for that if you don’t.
One of us could help you prepare your income tax returns, or help you assemble the documents that you will need to take with you to the accountant.
We have been thinking about when Aunt Bertha fell and broke her hip, and how hard it was for her kids to figure out how to pay her bills while she was in the hospital. There was a lot of stress and some hurt feelings because none of the kids knew who was in charge. Everyone had a different idea of how to take care of Aunt Bertha. And the bank wouldn’t talk to any of the kids without a power of attorney. As uncomfortable as it might be for you to open up to us about these things, it would really be better to have a discussion about what you want, at a time when it isn’t an emergency situation.
We’ve been to see our lawyer to get our own estate plan updated. It reminded us that we know very little about what you’ve planned. For example, who would you want to speak for you, if you had a health emergency and the doctors needed information? Have you selected someone to handle your finances if you aren’t able to – have you prepared a durable financial power of attorney or a trust? Who is your attorney? Where should we look for copies of your estate planning documents if we needed them?
We’ve been to see our financial advisor for a “tune up.” It’s been a while since we took a hard look at our investments and our plans for retirement. Do you still have the same financial advisor you have been using for years? Are you happy with him or her? Do you have questions about how your money is invested?
We are so thankful that Step-Mom has come into your life. You were so sad when Mom died and it’s good to see you happy again. We want to respect the arrangements that you and Step-Mom have made, but we’re not certain what you are expecting from us, and what you have agreed with Step-Mom. If there were a medical emergency, who would speak for you? Step-Mom or one of us? Do you and Step-Mom have an agreement as to how you handle household expenses? Did you prepare a prenuptial agreement before you got married? Do the two of you have a trust? Do you have joint accounts, or do you keep your money separate?
What can we do to help you stay in your home as long as possible, and to be comfortable, safe — and happy — there?
For almost four decades, we’ve been waiting for the client who wants a complicated will. We’re still waiting.
We hear the “I only want a simple will” request often. What clients really mean, of course, is “I want a cheap will.” That is, they don’t want to pay a lot for the legal advice or preparation of elaborate documents.
Our favorite variation is the client who wants a simple will, then tells us their assets are straightforward and their family situation ordinary. You know — the half-interest in a summer cabin in another state, the oil and gas interests in two other states and the closely-held family corporation that is worth somewhere between $1,000 and $10,000,000. And family situation? You know — one child has a developmental disability, another a drinking problem and the third is married to a spendthrift. But we’re just going to disinherit one, split things between the other two and trust them to work everything out.
We send a questionnaire to our prospective estate planning clients, so that we can figure out at least some of the possible issues during our first meeting — which is much more productive if we have the information at hand. Clients sometimes show up without having filled out the questionnaire, since they aren’t sure they want to hire us (hah! who wouldn’t want to hire us?) and they don’t want to go through the trouble of collecting information. More dangerous, though, are the clients who intentionally leave some of their assets off the questionnaire — in a misguided attempt, we suspect, to minimize the cost of their estate planning. That’s a little like not mentioning to the dentist that you have a persistent and painful temperature sensitivity on one tooth, hoping that it won’t need any expensive work.
Why do we even care about what assets you own? Isn’t it because we can charge you more if we know how wealthy you are?
We need to know about your assets to figure out whether you have an estate tax issue. Are you pretty sure you aren’t worth the $5 million that is required before federal estate tax concerns? OK — but what about state estate taxes? Though Arizona doesn’t have one, the state where you have that summer cabin might impose one. And have you added in the face value of your life insurance policies? Also the trust your grandfather left for you, which you don’t think of as “yours”? Also the possible inheritance from your parents? Those questions are all on the questionnaire, so that we can discuss them with you.
One of the principal questions we are going to talk about with you is whether you should have a living trust. Don’t worry — we’re not going to order you to do anything. But we do want to be able to give you a realistic estimate of the cost of probating your estate, and what you might reasonably do to avoid or minimize that cost. Without good information, we can’t give you either estimate.
There are real costs associated with choosing a “simple” will. We want to be able to estimate those for you, so that you can make informed decisions. By the end of our initial conversation, we will almost certainly be able to give you a flat-fee estimate of the cost of preparing your estate plan, with at least a couple variations for you to consider. Then you can decide how much simplicity you can afford.
How often do our clients end up with what might be called a simple will? If we get to define “simple,” our estimate is about half the time — or perhaps slightly less often than that. But even clients with those simple wills also have financial powers of attorney, health care powers of attorney (with living will provisions) and an instruction letter; the entire product of our representation will almost always amount to at least a dozen pages of lawyer language. We’ll also provide a translation/guide to the documents, and we are very interested in helping you to understand the options, your choices and the documents themselves; we don’t charge more for answering questions, and we like to get the opportunity.
A word about flat fees: almost all of our estate planning is done on a “flat-fee” basis. We will quote you a fee in our initial consultation, and that’s what we will charge. Do you need four drafts and extensive revisions? No additional cost. Do you love the first draft, and need no changes? Great — we got it right. But we don’t reduce our fee for doing a good job on the first pass, either. We think that arrangement makes it easy and comfortable for both of us. You get as many appointments, revisions and discussions as you need. We get the comfort of knowing that we heard all your concerns and questions, and that we’ve had an opportunity to address everything.
Even a short, inexpensive will is not simple. It is a profound document, and it isn’t even possible to figure out what it ought to say until we’ve talked through some of the issues.
Oh, and whether your estate plan is simple or complex, inexpensive or less inexpensive, it needs to be reviewed and (probably) revised every five years or so. But that’s a different concern we need to grapple with.
You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor and of course your lawyer kept a copy. Did you think you were done? Because you’re not.
Now it’s time to take care of the most important part of this process. Signing advance health care directives is important (you have gotten that part done, right? What??!! You haven’t? Get to it!). But perhaps more important than the documents is The Conversation.
Do you want your wishes carried out? The surest way to accomplish that is to actually tell everyone in your family what those wishes are. Tell them where the documents are, and share copies. Answer their questions. Make sure they know that you know what you’ve signed, and what you want.
That’s the premise behind The Conversation Project, a non-profit organization founded by columnist Ellen Goodman. According to the Project, 60% of poll respondents say that it’s important to make sure they don’t burden their families with tough decisions at the end of life. Still, 56% say they have not talked with their families about their wishes. In our experience, we think that latter figure is inflated; people tell us they have talked with family members, but on closer questioning they usually have not.
When do you have The Conversation? We’re promoting (only half tongue-in-cheek) Thanksgiving Day as the perfect opportunity. The whole family has gathered together, the turkey is taking longer to cook than was planned — it all works to create the perfect opportunity. OK — we know you’re not likely to bring it up this Thanksgiving, but what about the rest of the family weekend?
Need help getting started? The Conversation Project has a conversation “starter kit” to do just that. It gives you some ideas about what to discuss and how to bring it up. Get copies of your advance directives together for The Conversation and just get going.
We hear you say: “my family knows what I want.” No, actually, they don’t. And some may “know” you want something different from what other family members know. How would they know if you don’t tell them? Mind reading? Osmosis? Please don’t assume they do just because they know you.
So this Thanksgiving, try The Conversation (not the Francis Ford Coppola movie starring Gene Hackman, though we also like that one). Not ready to do it that soon? OK, but schedule it, and mention it to your family, and get ready for it. Don’t just shelve The Conversation, thinking you’ll get back to it later.
In the meantime, please, have a healthy, productive and happy Thanksgiving holiday.
Last week I underwent a small outpatient surgical procedure (I’m fine — thanks for asking). I actually looked forward to the “do you have an advance (medical) directive?” question on admission.
A couple years ago I had another outpatient procedure, and was surprised when the intake clerk asked about my advance directive. “Do I have one?” I asked, rhetorically and with amazement. “Of course I do. I am an elder law attorney practicing in Tucson for nearly four decades. I was involved in the leading Arizona case on surrogate decision-making. I sat on the legislative committee that came up with our current advance directive law, back in the 1990s. Not only do I have an advance directive, I have a darn good one!” “Great,” said the intake clerk — “where is it?” “In the safe at my office,” I admitted, sheepishly. Oops.
Once you fill out the form and send in your copy, you get a registration card back in the mail. It takes a couple weeks. My wife and I did this a few months ago, and so I was looking forward to using the form when I had to go in for last week’s procedure.
“Do you have an advance directive?” asked the intake clerk. “You bet,” I proudly replied, “and here’s how you can get a copy of it.” I handed her my card. “Huh.” she said (she was very expressive). I asked her if she had ever seen a card like that before, and she said that yes, she had started seeing them lately. Good news all around.
How does it work? Your registration card has a website address, a login and a password. Your doctor, hospital, outpatient surgical center, or anyone else with the login and password can download a PDF copy of your advance directive. And you can update the directive any time you sign a newer, better, more current one.
There’s a really nice change in recent years, and one disappointment. We can help you with the latter.
The good news: the current Arizona Secretary of State thinks your name is more important than his. His predecessor had her name splashed across the form and your identification card in type larger than the part that identified you — it was confusing and cheesy. Examining my current card, I can’t even find the Secretary of State’s name, and that despite the fact that the fellow is running for office. Good to see.
The bad news: the card you get back is a flimsy paper wallet-sized card. It isn’t laminated, isn’t durable, is easy to lose. Our offer: if we wrote your advance health care directive, we have a laminating machine that we’ll be happy to use to laminate your card. No cost. Just like the program itself.
Now you Arizona residents don’t have to keep a copy of your advance health care directives with you when you travel. You don’t need an extra copy stuffed into your car’s glove box. And, most importantly of all, you don’t have to sign a new document when you get to the intake clerk and she asks you where you keep your advance directive. It’s online, and in your wallet/purse.
Want more information? Check out the Secretary of State’s website or, within reason, ask us. If you are a client, we will do whatever it takes to get your card into your wallet. If you’re not a client, we’re still pretty nice, and we’ll probably help you.
You say you don’t have an advance directive? Shame. Get on that right away, please. It really is important.
It is late April, and that means Spring is in full bloom in Tucson. Many of our winter visitors (we call them “snowbirds” but not mockingly or disparagingly — at least most of the time) will be returning to Illinois, Missouri, New York, Wisconsin, or other, cooler climes. For that matter, many of our long-time residents and even natives will soon decamp to seashore or mountain, waiting for the heat to ease up.
This annual migration gives us a chance to talk about something we get asked a lot. Surely you need to have signed a health care power of attorney and living will. But do you need to have signed one in each state where you live part time? For that matter, should you sign a state-specific form for every state you visit more than fleetingly? And what about foreign countries — will your Arizona advance directive be valid in Canada, or Mexico, or Europe?
Generally speaking, there is less state-to-state law variation than you might suppose. Your Missouri will is going to be fine in Arizona (though if you’ve moved here from Missouri maybe your circumstances have changed — let us review and update your will. But that’s a different issue.) Your California living trust probably needs very little change for your new Arizona residence. But one area where there is a lot of variation is in advance health care directives.
What’s different? Terminology, for one thing. In Michigan they talk about health care “patient advocates,” and in New York they favor “health care proxies”. In both states they’ll probably figure out what you mean by “health care agent” or “health care power of attorney,” but you’d rather not make the hospital or doctor call the legal staff for an opinion. You’d rather just get good care, and quickly.
Another difference: some states permit broad powers in advance directives, and other states tend to be restrictive. Arizona is in the former camp. As many as half of the states would limit the applicability of your health care power of attorney to circumstances in which you are in a coma or persistent vegetative state; Arizona does not have that limitation, and so your Arizona form is unlikely to include that language. Furthermore, you probably wouldn’t want that restriction in your Arizona document while you’re here — why include a restriction that is not required and might cast doubt on the applicability of your advance directive, after all?
For many of our clients, the choice of agent is partly controlled by who is local and convenient. If you spend your winters near your daughter in Arizona, it might make sense to name her as your health care agent. If you return to Illinois, where your son lives, for the summer, you might want to name him as your agent while there.
There is a growing movement across the country — but not in Arizona — for something called “POLST” (some states use similar-but-different acronyms). That stands for “Physician’s Orders on Life-Sustaining Treatment,” and it is a very interesting and useful form by which you can have a “Do Not Resuscitate” (DNR) order in place before you go to the hospital or nursing home. Arizona has something similar, which is usually referred to as the “orange form” — but Arizona’s form will not work in any other state and no other state’s POLST form will work in Arizona. If you are concerned about resuscitation, you need to have appropriate plans in place in other states where you live part time or visit extensively.
So does all that mean you should have a new health care power of attorney drawn up as you drive across the border into New Mexico, Colorado and each state you go through? Not necessarily.
There’s at least one problem with having multiple forms signed. Under Arizona law, and the law of most states, when there are multiple documents that are internally inconsistent the most recent one is treated as revoking the earlier one. In other words, if you sign a new health care power of attorney as you arrive in Wisconsin this summer, you may have revoked your existing health care power of attorney. When you come back next fall, you’ll need to sign another one. The cycle can be endless, and the year that someone actually needs to make decisions for you will be the year you overlooked the update.
As for travel outside the country — that’s a lot harder to generalize about. In many countries the very concept of advance directives is foreign (that pun was completely intentional). Best advice: look up the country you’re visiting and see what you can find out, and take a copy of your advance directives with you just in case they’ll be helpful.
Plan for your travel when you first sign your power of attorney. Do you want your daughter to make your health care decisions while you’re here, and your son in Illinois? Tell us and we can draft for that. Do you spend lots of time every year in Virginia? Let us know and we can double-check whether Virginia is particularly problematic (we have — it’s not).
Make sure that you’ve talked with family members about your wishes. Those making decisions for you need to know what you would want. Those NOT making decisions for you particularly need to know — we’ve had lots of cases where the distant family member said, more or less, “Mom NEVER would have said that if she’d been in her right mind.” Tell everyone what you want while you’re clearly still in your right mind, and that will reduce the possibility for conflicts based on where you are, what your documents say (or don’t say) and whose form you used.
In addition to your advance directives, you might want to write some thoughts about end-of-life treatment. The best ones are in your own words, but there are others out there — like the well-known “Five Wishes” document, which you can create, review and pay for online. We would rather you didn’t sign this form, though — we don’t want you revoking your valid Arizona advance directive unintentionally. Customize it, print it out, and bring it with you when you visit us — we can talk through it and adopt those portions you like. Note that even the people who promote Five Wishes identify 8 states where the document does not meet requirements of state law.
If you do travel a lot, or have homes in more than one state, you probably are not a good candidate for a pre-printed advance directive form. If you signed your will (and maybe your living trust), and then filled out a form at the hospital, doctor’s office, church seminar or public forum, we need to see you again — you probably have inadvertently revoked the power of attorney we prepared for you when you first came in. If you haven’t yet gotten around to doing anything about this, get moving. First download the Five Wishes document (see above), or the Arizona health care directive forms, and then make an appointment. Let’s get this done.