Estate Planning and Legal Considerations Linsey Gleason May 4, 2018 Important Notice: This presentation has been prepared by Varnum, Riddering, Schmidt & Howlett LLP for informational purposes only and does not constitute legal advice. Copyright 2009, Varnum, Riddering, Schmidt & Howlett LLP. All rights reserved.
Estate Planning What Does it Mean? Planning for death Planning for incapacity Encompasses many issues/decisions related to: Your care (incapacity) Management/distribution of assets (incapacity or death)
Legal Capacity Sufficient understanding or capacity to make or communicate informed decisions Determination of incapacity is made by a probate court judge Different standard than ability to execute a Last Will and Testament, etc.
Probate Court If you cannot care for yourself, and don t have a plan in place, what happens? Living Probate! With no plan, the judge plans for you Guardianship medical and other care Conservatorship financial management
Guardianship Governed by a probate court Can result in a declaration of incapacity Judge appoints a guardian to assume partial or total responsibility for the incapacitated individual
Guardianship Disadvantages: Lack of control Emotional toll Financial cost Ongoing court involvement
Estate Planning for Incapacity Necessary documents to avoid living probate: Durable Power of Attorney Designation of Patient Advocate/Advance Directive
Durable Powers of Attorney Durable means it lasts beyond incapacity Needs to be created in accordance with state laws You select agent to make financial and legal decisions You define range of powers Generally eliminates need for conservatorship Less expensive and private
Advance Directives Documents can indicate preferences about: Treatment and care Custody and placement Mental health treatment Organ donation End-of-life wishes Decision makers HIPAA
Advance Directives Many names, many forms, not all the same Designation of Patient Advocate Durable Power of Attorney for Health Care Living Will Do-Not-Resuscitate Order (DNR) MI-POST form Family members, designated individuals and health care providers should have copies of or access to all current documents
Advance Directives Important that you select a patient advocate to make decisions on your behalf Generally avoids need for guardianship Private and less expensive Avoids Schiavo situation and California child syndrome
Choosing a Patient Advocate What makes a good advocate? Your advocate must understand your goals and preferences Must be willing to serve Be certain your advocate will follow your wishes, even if they don t personally agree with them, and even if under pressure
Patient Advocate Designation Exercisable only when the patient is unable to participate in medical or mental health treatment decisions as determined by the patient s attending physician and another physician or licensed psychologist A patient may revoke a patient advocate designation at any time
DNRs DNRs are for individuals outside of a hospital setting to direct that resuscitation not be attempted if the patient s heart and breathing stop EMS are required to provide aggressive treatment unless otherwise directed by a medical order (DNR or MI-POST form) In the absence of a medical order, patients may receive CPR, intubation, defibrillation, etc. based on standard protocols
MI-POST Physician Orders for Scope of Treatment (POST) form: A tool for translating patient s goals of care into medical orders The MI-POST program is designed to ensure seriously ill patients can choose the treatments they want and that their wishes are honored Uses standard forms Just recently signed into law in Michigan
Making Choices as a Care Team Ongoing communication is important as needs change If there are disagreements, consider: Guardianship Mediation Legal professionals