Next-of-kin, estrangement, and taking control

When we help clients with “estate planning’ we also discuss planning for events while they are still living. Many of us have ideas about what to do with our legacy or estate, once we are dead. We might have family or friends or charities in mind–people or organizations who would take after our death because of provisions in our will or trust, or even because we have simply named the person or organization as a beneficiary after our death on an account at a bank or credit union or IRA.

But what would happen if we became quite disabled before we died? Is there a way we can sort of “take control” even though we are disabled?  Some advocates say yes, if you work hard at it.  But even more folks say, the time to “take control” is before you lose control–in other words, line up your choices and make some decisions AND PUT THEM IN WRITING, before you ever become severely disabled.

Have you thought about naming someone/something who could help with your financial and business affairs (sometimes this might even include a financial institution if your holdings are large or sophisticated) while you are living?

How about your medical affairs? Who have you picked to speak for you, should you be so disabled that doctors don’t think you understand what is going on, and medical treatment decisions (starting or switching or stopping treatments, for instance) are needed? In Michigan parents DO NOT automatically get to speak for their young adult children such as the 19-year-old still in college or trade school, nor–a surprise to many–is a spouse legally allowed to decide for a spouse without documents in place or a court order.

The law in Michigan, through Michigan’s statutes, gives a preference for these issues to next-of-kin BUT that preference arises when we haven’t made the decision in advance, and put it in writing. Without a bit of planning and work court involvement might be needed–a hassle and expense in a time of crisis or mourning that you can usually avoid by getting documents set up ahead of time.

For the times when we might be alive but not able to handle our own affairs, the usual documents needed are a durable power of attorney (the business and financial affairs of life) and a medical power of attorney/designation of patient advocate (medical decision making when we are alive but incompetent). Sometimes a trust can help as well–in the financial/business arena.

When we are dead, the most common document to come in handy is a will (or a trust, or both) and one can also have a personal property distribution list, and a funeral representative named if you so desire.

As a recent article in the New York Times indicates, we should not always assume that “next-of-kin” are the natural choice after all–estrangement among family members is not uncommon. And even among families who have been keenly supportive of one another, not all our relatives are equally able to step into our shoes while we are living, nor be smart choices to wrap up our affairs once we die.

Our firm takes the time to talk through some of these issues with you for better planning and to help create documents that will be helpful and not merely perfunctory.  We have created a sort of estate and life planning questionnaire that we can send to folks before they meet with us, so that our meetings then are productive and informative, and in order that we can eventually create a tailored estate plan at a still reasonable cost.  Give us a call soon if you’d like to create or update your life and estate planning.

As to the New York Times article, you can find it here:…/debunking-myths-about-estrange…

National Coming Out Day

October 11th is sometimes called “National Coming Out Day.”
The theory of the “day” being an idea that folks who actually know some gays or lesbians or trans folks among family or friends or co-workers tend to be more supportive of all such folks, and more guarded about legislation that might have a bias against lgbt individuals.
It would seem in our modern age, with gays and lesbians on mainstream tv as characters and all, such a day would have little use or meaning.
And sadly, some younger lgbt folks seem to still struggle a lot.  While we may not know how solid the stats are, it does seem like younger people, perhaps pressuring themselves, or feeling pressure from other quarters, still struggle greatly.  Purportedly  their suicide risk is higher, and they have other struggles too that seem out of whack given the relative small numbers.  See for example this piece:
For the senior end of the age spectrum, there have been SAGE projects and similar programs around for a while. Here is an example from the metro Detroit SAGE section of their website:
And for homeless youth and others there is a project, more or less national in scope, called the Trevor project, of which you can learn more here:
Finally, a legal group that has been around a long time, called Lambda Legal, with offices scattered around the country is also a resource.  Their website is here:
Our firm also helps serve the LGBT community.  You can find more information elsewhere on our website, including in our useful resources section.

Medicare Advocacy and “Failure to Improve” or “Plateaus”

Those who accept Medicare as payment–meaning almost every hospital, almost every nursing home and most doctors and rehab specialists in the country–sometimes worry about being audited.  Their records can be checked a year or so after they have billed for services, and been paid, for services.  It might make an administrative person with such providers anxious–what if they have to pay back something to Medicare, after all?

Audits are smart and help reduce error and fraud.  But if providers over-react and become too cautious because of audits those who use Medicare can suffer.  This is so because for a long time an informal and improper metric has been used by providers, and the metric puts Medicare users at a real disadvantage.

Watch out for these old terms, still used at times now: “failure to improve” or “plateau.” Those terms have been used informally for a long time. You might hear it even now when you are trying to see about services for a loved one who has Medicare coverage. Coverage denials based on that alone are improper and unfair.

Those on Medicare who want more therapy or services, in hopes of maintaining some small part of their health or abilities, or better levels of care that might let them return home, have been often told by facilities or providers that Medicare wouldn’t help reimburse or pay for such services. Scary stuff, as many seniors would find it tough to pay for much in the way of such services themselves for more than a few weeks.

Medicare does not provide unlimited coverage, as we know.  But be prepared to challenge some denials of care coverage if it seems proper.  Remember, the “failure to improve” or the “he/she’s reached a plateau” is not the right metric.  Actually under the regulation and law, maintaining a patient’s current condition or preventing or slowing a patient’s further decline or deterioration is a sufficient reason to obtain services.

Feel free to gently push back against providers if you are given this line, or call an elder law firm like ours to review the situation.

Rather than writing a full dissertation though, I suggest folks check this website–a feisty group sued (the case is Jimmo v Siebelius) to get clarification of this issue to help the aged and disabled, and here is their question and answer page about the issue:

Not all care is the same?

“I hate oatmeal”

My 89 year old father was in Florida, in a hospital for a few days, before hospice care had been elected.

When some health problems had piled up on him before, he typically still had his wits about him, even if frail, and could communicate. Up until 10 days before his death in late 2010, my dad, a former Marine stationed in the Pacific during WW II, and former plumber and heater contractor for decades, often did a few crossword puzzles a day.  And my father wasn’t adverse to taking action when called for, to be in charge of his own life–in fact once at a youthful 83 or so, he left a hospital against medical advice, pulling out the various “iv’s”  getting dressed and walking out of a hospital and saying “enough of this, I’m going home” (or more colorful words to that effect that I won’t quote here).

But he wasn’t able to communicate much of anything, in this very last week of his life, in 2010.  He had care more or less 24/7 in the hospital just before hospice was chosen, and a wonderfully sweet care attendant was helping to spoon feed him breakfast. One of the items she was feeding him was oatmeal. My dad really hadn’t said anything coherent to us for a few days now, his mumbling or tormented statements seemed a bit like “word salad” to us.  We couldn’t really understand him.

But at that moment in a hospital room in Fort Myers Florida, my dad said, as the aide dutifully tried feeding him: “I hate oatmeal.”  Many of us kids were in the room, some of my siblings and even in-laws, and many of us had taken up jobs and roles in helping my dad stay at home as long as humanly possible.  I was very certain of his medical wishes, his thoughts on treatment, as well as when medical treatments could end, and we all knew that he was less energized at the tail end of his life, having lost his wife of more than 44 years (a second marriage) almost 4 years previous.

I knew a lot about my dad, and his wishes, and his finances, but I didn’t know my dad didn’t like oatmeal.  

I knew where he kept investments, knew where he banked, had a rough idea of the value of his home (we kids had been urging him to sell his place and move in with one of us or to an assisted living place or a senior apartment for almost a year–another story for another day–let’s just say he only reluctantly agreed to that idea in concept and only on the last few months of his life), knew what special things he wanted allocated and to whom, knew what some of his favorite meals were, knew which bills he paid regularly, but I had no clue he hated oatmeal. But perhaps I should have.

Given how long many of us are living now, and given the medical interventions that might allow us to live longer, even with some tough medical conditions that might have killed us in earlier eras, it might be smart for all of us to also leave a bit of values/quality of life statement around.

After all, most all the legal things that  attorneys suggest we get in place, such as a medical power of attorney, a durable power of attorney for finances, and documents that come into play largely after we die, such as a trust, or especially a will, leave instructions. And by their crafting, such documents might provide a hint of our values or speak to the quality and dignity of our lives, even if we can’t.

But far and away, these documents don’t typically speak much to what is also important. What kind of music or food do we love, what colors please us, what we’d want on a desert island or, were we reduced to a single room in an assisted living facility, what stick of furniture or piece of artwork, or photographs do we treasure, and should be brought along? What visitors would we be happy to see, or conversely, which folks would we rather not have around again?  What religious traditions did we grow up with, if any–and what religion do we now embrace or eschew? What clothing do we like to wear if the choice is ours? How do we see ourselves?

If our life “shrinks” some or our independence fades, and perhaps we become more dependent upon others, will those who care for us know these things?  And particularly if we no longer (or never) have a spouse around, nor kids, how will this knowledge–how will these small but important things–ever be noted?

At our office, we don’t make a big production of this, but we do encourage, folks to think about this–using a one page (2-sided) document as a cheat sheet.  We encourage clients to jot down some  notes about these sort of things.  We want the folks who might care for you if and when you are disabled, to know just a bit more about you than a legal document or medical chart might convey.

As we tend to live longer these days, there could well be a time when life “shrinks” for us, or communication or control of some aspects of our life fades or is transferred to others.  And we think it only right that those others have a clue about you.  We want folks to know what you like and hold dear, and we want them to know whether or not you hate oatmeal. Remember, there may come a time when our caregivers don’t know us personally, and won’t really know much about us, know much about our values and likes and dislikes.  A little document like this, informal as it may be, might be a good thing, and add to our quality of life as we go forward. 

At the law offices of Bradley Vauter & Associates, P.C. we often help address the very human and personal parts of our life, parts that intersect with the law. Should you have any questions and want to set up an appointment for your own new (or updated) estate planning, or if you’d simply like to request the loves/values/life document we give out, feel free to call us at 517 853-8015, or write us at Bradley Vauter & Associates, P.C., 912 Charlevoix Dr.  Ste. 120, Grand Ledge, MI 48837.


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