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Evolving right to die laws…

Evolving right to die laws…

The link below is a very in depth article to read about the evolution and growth of Right to Die laws in the United States and around the world.  Right to die laws concern the ability of a person to end their lives prematurely if they are terminally ill.  Interestingly, this ties into estate planning with the need for a strong healthcare power of attorney and healthcare directive (sometimes referred to as an advanced directive or living will) which outlines your wishes as to continuing medical care and life preserving treatment if you are terminally ill, persistently unconscious or there is no reasonable expectation of your recovery from a serious illness or condition.

Right to die differs, however.  In all but a few states in America, it is currently illegal to assist in the death of the patient.  Your healthcare directive can state that you wishes are not to have continuing life preserving care if it is not going to make a difference, but no steps can be proactively taken to end your life.  This is obviously a clear distinction and one that the article covers.

I expect right to die to become a key issue (if it is not already) in the coming years, with an aging Baby Boomer population and many industrialized countries such as India and China having large aging populations.  It is a contentious issue as well, for clear reasons.  Taking someone’s life has never been an accepted medical standard for treating terminal illness.  Right to die could change that for terminally ill patients.

Here is the link to the article:

http://www.economist.com/news/leaders/21656182-doctors-should-be-allowed-help-suffering-and-terminally-ill-die-when-they-choose

5 Myths about Healthcare Directives, Living Wills and Healthcare Powers of Attorney in Missouri…

A healthcare directive is a general term of a document that gives instructions about your health care and appoints someone to make medical treatment decisions for you if you cannot make them yourself.

A living will is a document which you state your wises with respecting to life sustaining treatment if you are terminally ill or persistently unconscious.

A durable power of attorney for health care is a document by which you name someone else to make medical treatment decisions for you if you cannot make them yourself.  This person is called your agent or proxy.

Here are 5 Myths about Healthcare Directives, Livings Will and Healthcare Powers of Attorney in Missouri:

MYTH 1:  You must have a Living Will to stop treatment near the end of life.  FACTS:  Treatment can be stopped without a Living Will if everyone agrees.  However, with a power of attorney and living will you have named a person to make decisions (preventing disputes and disagreements) and have stated your wishes as to your healthcare in advance.

MYTH 2:  An advance directive means that you should not be treated at all.  FACTS:  An advance directive can state both what types of treatment you want and what types you don’t want.  Further, by stating you don’t want treatments done you will be given “pallative care”, which is designed to keep you pain free and comfortable.

MYTH 3:  I can just wait until I am sure about what I want before signing an advance directive.  FACTS:  The whole point of an advance directive is that you create in advance of any problems.  At the very least, you can name a healthcare agent to make decisions for you.  It’s a mistake to associate medical emergencies and issues with only advanced age.  See number four!

MYTH 4:  Advance directives are only for the elderly.  FACTS:  Every adult should have an advanced directive, young or old.  While it is true that the elderly use advance directives more than younger folks, it is the young that have more at stake.  Why?  If a younger person has a disease or condition, they might be kept alive, but in a vegetative state for years.

MYTH 5:  If I complete a healthcare power of attorney, I give up the right to make my own decisions.  FACTS:  This is not the case as long as you are able to communicate your decisions.  If you do not name an agent to make decisions if you can’t, it’s much more likely you have will have a guardian appointed by a court, which can not only cause a delay and more money, but also take the decision to appoint someone for you out of your hands and in the hands of a judge who does not know you.

Avoiding probate with a revocable living trust…

AVOIDING PROBATE WITH A REVOCABLE LIVING TRUST

The most common way to avoid probate is by establishing and funding a Revocable Living Trust.  This type of trust is often just called a Living Trust or a Revocable Trust.  All three terms mean the same thing.

Creating a Revocable Living Trust

This type of trust is created by drafting a trust agreement and it has three primary players.  The first is the Grantor (sometimes called a Settlor or Trustor), who is the creator of the trust.  The second player is the Trustee, or the person you put in place to manage the trust.  Ordinarily, the initial Trustee and the Grantor are the same person.  The individual who takes over management of the trust when the initial person passes away or becomes incapacitated is called the Successor Trustee.  When a bank or similar entity is the Trustee, they are referred to commonly as a Corporate Trustee.  The last player is the Beneficiary.  Often the initial Beneficiary is the Grantor and Trustee and additional Beneficiaries are named to receive the proceeds of the trust when the Grantor passes away.  In the typical case, this might be the Grantor’s children.

Avoiding Probate with a Revocable Living Trust

The initial step of creating a trust does not in itself avoid probate for the Grantor.  All assets owned by the Grantor must be taken out of their individual name and be placed in the name of the trust.  This step is referred to as “funding the trust” and it is the second vital step which must occur in order to avoid probate with the trust.  In Missouri, if the Grantor owns a home, the home can be placed in the trust by drafting either a quitclaim deed or by a beneficiary deed (the method I prefer).  The titles of accounts can be changed to be owned by the trust rather than by the individual.  Cars, boats and trailers can have their titles amended to add the trust as the TOD (a “Transfer on Death”) beneficiary.  Securities accounts can be changed to be owned by the trust rather than the individual.  By transferring ownership of these assets during life, there will be nothing to be probated when the individual dies because everything will either be owned by the trust itself or the trust will be the named beneficiary of the property.  It is important to note that while we are transferring ownership of Grantor’s assets to the trust, he or she will still have control and possession of trust assets as if they were owned individually.

Trusts are Cheaper Than Wills in the Final Analysis

Wills are cheaper than trusts but only initially.  That is because a will does not avoid probate.  It merely provides a distribution scheme for your assets IN probate.  Probate costs far outweigh the cost of a revocable living trust when the person passes away.  There is also the time and uncertainty which are also costs of probate.  Thus, the revocable living trust continues to be the best way to avoid probate.

What are VA Aid and Attendance benefits

Aid and Attendance is a benefit paid by Veterans Affairs (VA) to veterans, veteran spouses or surviving spouses. It is paid in addition to a veteran’s basic pension. The benefit may not be paid without eligibility to a VA basic pension. Aid and Attendance is for applicants who need financial help for in–home care, to pay for an assisted living facility or a nursing home. It is a non–service connected disability benefit, meaning the disability does not have to be a result of service. You cannot receive non–service and service–connected compensation at the same time. Aid and Attendance benefits are paid to those applicants who:

  • Are eligible for a VA pension
  • Meet service requirements
  • Meet certain disability requirements
  • Meet income and asset limitations

Who is Eligible for Veterans Affairs Basic Pension and Aid and Attendance?

A pension is a benefit that the VA pays to wartime veterans who have limited or no income and who are at least 65 years old or, if under 65, are permanently or completely disabled. There are also “Death Pensions,” which are needs based for a surviving spouse of a deceased wartime veteran who has not remarried.

What are the Service Requirements for Aid and Attendance?

A veteran or the veteran’s surviving spouse may be eligible if the veteran:

  • Was discharged from a branch of the United States Armed Forces under conditions that were not dishonorable AND
  • Served at least one day (did not have to be served in combat) during the following wartime periods and had 90 days of continuous military service:
    • World War I: April 6, 1917, through November 11, 1918
    • World War II: December 7, 1941, through December 31, 1946
    • Korean War: June 27, 1950, through January 31, 1955
    • Vietnam War: August 5, 1964 (February 28, 1961, for veterans who served “in country” before August 5, 1964), through May 7, 1975
    • Persian Gulf War: August 2, 1990, through a date to be set by Presidential Proclamation or Law.

If the veteran entered active duty after September 7, 1980, generally he/she must have served at least 24 months or the full period for which called or ordered to active duty (there are exceptions to this rule).

What are the Disability Requirements for Aid and Attendance?

Veterans, spouses of veterans or surviving spouses can be eligible for Aid and Attendance benefits if they meet the following disability requirements:

  • The aid of another person is needed in order to perform personal functions required in everyday living, such as bathing, feeding, dressing, toileting, adjusting prosthetic devices, or protecting himself/herself from the hazards of his/her daily environment; or
  • The claimant is bedridden, in that his/her disability or disabilities require that he/she remain in bed apart from any prescribed course of convalescence or treatment; or
  • The claimant is in a nursing home due to mental or physical incapacity; or
  • The claimant is blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less.

What are the Income Requirements for Aid and Attendance?

The claimant’s countable family income must be below a yearly limit set by law. Countable Income means income received by the claimant and his or her dependents. It includes earnings, disability and retirement payments, interest and dividends, and net income from farming or business. A claimant must report all income, but the VA will exclude any income that the law allows. Public assistance, like SSI, is not counted as part of countable income. The annual income limits for the Aid and Attendance program are higher than those set for the basic pension. The maximum Aid and Attendance benefit that can be paid monthly to a single veteran is $1,704, but the veteran must have countable income of $0 to receive the maximum benefit.

The following chart includes the set yearly income rate/annual pension Aid and Attendance limit set by Congress; it also includes the maximum monthly benefit:

Aid and Attendance Maximum Annual Pension
Rate (MAPR) Category

If you are a…

Basic Pension MAPR5% of Basic Pension MAPR

(The amount you subtract from
medical expenses…)

Annual Aid and Attendance Pension Rate

Your yearly income must be less than…

Single Veteran$12,465
($1,039 per month)
$623$20,795
($1,733 per month)
Veteran with Spouse/
Dependent
$16,324
($1,360 per month)
$816$24,652
($2,054 per month)
Two Veterans Married to
Each Other
$16,324
$1,360 per month)
$816$32,115
($2,676 per month)
Surviving Spouse$8,359
($697 per month)
$417$13,362
($1,114 per month)
Surviving Spouse with
One Dependent
$10,942
($912 per month)
$547$15,940
($1,328 per month)

Unreimbursed Medical Expenses

A portion of unreimbursed medical expenses paid by claimants may reduce the countable income.

Unreimbursed medical expenses include: cost of a long term care institution or assisted living, health related insurance premiums (including Medicare premiums), diabetic supplies, private caregivers, incontinence supplies, prescriptions and dialysis not covered by any other health plan. Only the portion of the unreimbursed medical expenses that exceed 5% of the basic pension MAPR may be deducted (see above chart for this amount).

What are the Asset Requirements for Aid and Attendance?

Net Worth (the value of your assets) also affects eligibility. VA pensions are a need–based benefit, and a large net worth might affect your eligibility. All personal goods are exempt from the net worth. These goods include the home you live in, a vehicle used for the care of the claimant, and household goods and personal effects such as clothes, jewelry and furniture. Unfortunately, there is no asset limit set by law, and the determination of eligibility can be made at the discretion of a VA caseworker.

Caring for Mom and Dad as they age…

Probably one of the best things about being an estate planning and elder law lawyer is that I get to work with and help seniors.  I am often dealing with the adult children of elderly parents as they are suddenly dealing with a crisis with Mom or Dad or a slow evolving process of needing to help them out as they age.

There are two main issues for us to discuss if you are helping an elderly parent.  The first issue we need to discuss is whether Mom and/or Dad have their estate planning in place and updated.  Do they have a will?  Is there a trust?  Have their assets been transferred into the trust?  Is there a recent power of attorney allowing you to make decisions for them (if they want you to do that)?  The cutoff for completing estate planning is competence.  Once a person loses competence, we lose a lot of ability to proactively complete estate planning for them.
There are alternatives.  Without a power of attorney, we’ll have to file a petition for guardianship to have the court appoint you as the legal representative.

We usually see outdated or incomplete estate planning with older clients and that’s why it’s especially important that we tackle this issue first.  Because going forward, those documents have to be done before it’s too late.

The second issue is whether Mom or Dad should stay at home, can move to an independent living facility (the next best thing to being at home), should go to assisted living or must go into skilled nursing.  This largely is going to hinge on their medical condition and whether Mom or Dad wants to move.  If they are going to a facility the question then becomes how are they going to pay for that?  It is one of the unfortunate quirks in our healthcare system that physical ailments (such as heart problems / strokes) are paid for nearly in full by Medicare, regardless of age, but diseases such as Alzheimer’s and other forms of dementia are not covered when they require more extensive and prolonged care for their patient.

Depending on the type of facility, there are a few different ways to pay for long term care.  The first is private pay.  Next and best is long term care insurance.  Then there are government programs such as VA Aid and Attendance and Medicaid.

VA Aid and Attendance is available to veterans and surviving spouses of veterans who have served one day in a war time period, had 90 days of active duty and were discharged honorably, are in need of the “aid and attendance” of another person with the activities of daily living and have limited assets and income.

Medicaid is a federal program administered through the states and is much more stringent in the amount of assets an individual can have (in Missouri, less than $1000.00).

No matter what the circumstances, you will need a competent estate planning and elder law attorney to guide you through the process.  Estate planning and elder law has a lot of moving parts and they are constantly changing.