Elder Law Firm of Steve Bailey

Overview of State Death with Dignity Laws

“As of June 10, 2017, residents of Oregon, Vermont, Washington, California, Colorado, Montana and the District of Columbia may legally choose to have physician-assisted death, also called “death with dignity,” under certain conditions.”

As of June 10, 2017, residents of Oregon, Vermont, Washington, California, Colorado, Montana and the District of Columbia may legally have physician-assisted death, also called “death with dignity,” under certain conditions, according to CNN. Death with dignity is legal in Montana, because of a court ruling. In the other five states and the District of Columbia, state statutes make assisted dying legal. If you or a loved one is contemplating aid in dying, you need an overview of state death with dignity laws.

Legalized Death with Dignity

Besides the six states and the District of Columbia with death dignity laws or legalization, 30 states are considering death with dignity legislation. That leaves only 14 states that do not have legalized death with dignity and are not considering the legislation at this time.

In the handful of states that allow physician-assisted death, a doctor cannot be criminally liable for prescribing medications that speed up death for eligible individuals. To be eligible, the patient must have a terminal illness and be expected to live no longer than six months, as confirmed by two physicians. The individual must be at least eighteen years old and mentally competent to make and communicate his health care decisions.

The approved method of death is different in each state.  However, the person must be able to take the medication without assistance. The District of Columbia law does not require you to be a resident, but all the states do.

The Terminology Involved

The Death with Dignity (DWD) National Center advocates the use of the term “death with dignity” rather than “physician-assisted suicide,” “doctor-assisted suicide,” “assisted suicide” or “euthanasia.” DWD argues these terms are incorrect, inaccurate and mislead the public. Descriptive terms recommended by the Death with Dignity organization to prevent judgmental implications are “physician-assisted death,” “physician-assisted dying,” “physician-hastened death/dying,” “aid in dying,” “physician aid in dying,” and “medical aid in dying.”

The Process for Death with Dignity

If you meet the eligibility criteria, it is not merely a matter of asking your doctor for a prescription. You must follow a multi-step procedure to utilize your state’s death with dignity laws. The steps for states that allow aid in dying are:

1. You make a verbal request to your doctor for aid in dying.
2. Your physician confirms whether you meet the eligibility requirements, including your current mental status.
3. Your doctor must advise you of your options and ask you to notify your next of kin of your request for aid in dying.
4. A second physician confirms your eligibility.
5. If both doctors determine that you may use your state’s death with dignity law, the first waiting period begins.
6. After at least 15 days, you can make your second request to your doctor. Your second request can be oral or written.
7. California and Colorado require no second waiting period, but in Vermont, Oregon, Washington and the District of Columbia, your doctor must allow 48 hours to pass after the second request before writing the prescription. You do not actually receive the physical piece of paper on which the doctor wrote the prescription. Your doctor can either provide the medication directly to you or send the prescription to a pharmacy.

With aid in dying laws, you are in control of the decision and the process. You may retract your requests, whether oral or written, at any time. You do not have to fill the prescription, even after it is sent to the pharmacy. You do not have to take the medication. No one has the legal right to compel you to do anything against your will.

The laws are constantly changing.  Therefore, before you take any action toward aid in dying, check with a local elder law attorney for the status of the laws in your state.

References:

Death with Dignity. “Take Action: Death With Dignity Around the U.S.” (accessed August 27, 2017) https://www.deathwithdignity.org/take-action/

Death with Dignity. “Death with Dignity as an End-of-Life Option.” (accessed August 27, 2017) https://www.deathwithdignity.org/faqs/

CNN. “Physician-Assisted Suicide Fast Facts.” (accessed August 27, 2017) http://www.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts/index.html

Death with Dignity. “How to Access and Use Death with Dignity Laws.” (accessed August 29, 2017) https://www.deathwithdignity.org/learn/access/

What to Do When Your Parents Outlive Their Financial Resources – and Don’t Want to Go to a Retirement Home

People are living longer than ever. It’s, therefore, important that you help your aging parents plan their finances and living arrangements. Those born today in the United States will have an average life span of 78.8 years. People born in 1900 didn’t live past 50 on average. That’s a 58% increase in longevity in just a little over 100 years. Although increased longevity is one of the great modern accomplishments, it also means that people are living longer in their twilight years on fixed incomes.

Three Things to Consider in Helping Your Aging Parents

Grown children have no legal obligation to help financially strapped aging parents who cannot support themselves in their retirement.  However, most feel a moral obligation to do so. Seniors sometimes take out mortgages on their homes to have money to live on.  They may find that it’s not enough, even with their pensions and social security benefits. Many older people do not want to go to a retirement community. If so with your parents, keep reading.

1. Think now about your parents’ finances
   Don’t be afraid to ask your parents what their plans are for the future. Will they have enough money to live? What is their monthly cost of living? Remember that their situation will also affect you, so it is natural for you to ask these questions, if you have your parents’ best interests at heart.
2. Determine if other family members will contribute to your parents’ upkeep
   Talk with your siblings to determine if they will contribute to helping your parents. If they will contribute, determine if your combined contributions would be enough to keep your parents in their home. Are there others who could contribute, such as grandchildren or in-laws? The parents and contributing family members should consult with their accountants to get accurate pictures of their assets and liabilities.
3. Consider a live-in arrangement
   Let’s assume, for this example, that Dad has passed away and Mom is trying to figure out how to comfortably live out her golden years. If there is not enough for Mom to live on, even with family member contributions, one sibling and their family might consider a co-living arrangement with Mom. However, know that selling Mom’s property, adding names to deeds and transferring Mom’s residence are all actions fraught with legal and financial pitfalls that may not be immediately apparent. Don’t act without first consulting an experienced elder law attorney. Transferring assets could have far-reaching and dire consequences, if you don’t get competent legal advice first.

What to Do before Combining Households with an Elderly Parent

Should you decide that a joint living situation seems to make sense, you have things to think about.

1. Honestly consider whether your family and your parent or parents can live together harmoniously.
2. All siblings should meet to determine how much they can contribute to your parents’ care, so the entire responsibility is not on the sibling who will share a home. Once again, determine if other family members will contribute. Discuss the amount that each can contribute, and when and how those contributions will be made.
3. Think about long-term realities. Help your aging parents, but you must also think about your own necessities. It will not be helpful to put yourself into a situation where you do not have enough money for your own family.
4. Consult with an estate planning attorney and an elder law attorney. All agreements should be in writing, so all parties are protected and promises are kept. You should consult an elder law attorney about:
   1. How you and your siblings can best help your parents financially;
   2. How your parents, you and your family can be protected legally and financially;
   3. How you can combine households without unexpected legal and financial consequences;
   4. How available government programs can help your parents and how your parents can qualify for Medicaid, if necessary;
   5. How your parents can secure a place in a retirement community or nursing home later, should living at home become unmanageable.

Help Your Parents Plan for Their Future

This may all seem a little overwhelming, and it’s easy to put off talking with your parents about their finances. However, the time to do it is before the situation becomes a crisis and you are trying to decide under intense stress. Remember that you are not alone. Call a good elder law attorney and make an appointment, so they can help you help your parents.

Details on the All-Important Durable Power of Attorney

“Look at it from the institution’s point of view: how do they know the Durable Power of Attorney is valid?”

When you are looking at your estate planning, a Durable Power of Attorney (DPOA) is an important document to have. It lets you designate another individual to handle your financial affairs if you can’t do so.

According to The (Wichita Falls TX) Times Record News article, “Tips to make a Durable Power of Attorney work,” sometimes the person to whom you give authority—known as an “agent”—will visit your financial institutions and unsuccessfully attempt to get something done on your behalf. The bank might say “no”, even when they see your perfectly legal DPOA.

Sometimes banks don’t want to recognize a valid POA.

In the eyes of the bank, the DPOA could have been rescinded or even forged. Financial institutions want to do everything they can to protect themselves from lawsuits and damages. Using their own DPOA form is one of those protections. They may want you to use their own forms.

Another good idea is to introduce your agent to your local bank or financial institution, allowing them to meet and get to know each other.

In the event the agent is unable to get the bank’s approval, they should ask why. It may be as simple as changing the wording in the document. You can also ask your estate planning lawyer to speak with the bank’s legal department. This may cut through some of the red tape that can be created by front-line staff misinterpreting the bank’s requirements or rationales.

If all else fails, particularly if you’re the agent and the principal isn’t competent, you may need to file suit to have the DPOA honored. In some rare occasions, a guardianship is requested.

What if you are hospitalized in a coma after a car accident? Were that to happen, who would complete and file your taxes, pay your bills and handle all of the minor and major issues you normally do for yourself?

Work with a qualified estate planning attorney to help you ensure that all of your bases are covered in advance.

Reference: The (Wichita Falls TX) Times Record News (March 11, 2017) “Tips to make a Durable Power of Attorney work”

Don’t Let a Loved One Become an “Elder Orphan”

“A recent study has raised awareness about the growing population of seniors who are aging without the benefit of a family support system.”

Many Americans are opting to stay single and without children. This is creating new challenges for a health care system that is already stretched to its limit by an aging baby boomer population.

The chief of geriatric and palliative medicine at North Shore LIJ Health System found that about 25% of Americans age 65 or older are in danger of becoming “elder orphans.” That number may be increasing, as U.S. Census data says that one-third of Americans 45 to 63 are single—an increase of 50% since 1980.

The Enid (OK) News’ article, “Many seniors age without a support system,” identified some questions to help physicians and other health care professionals screen patients and help identify those who are at the greatest risk of becoming an “elder orphan.” Identifying individuals most at risk allows health care providers to more effectively meet their needs and help to avoid health crises before they happen.

Planning for the future is critical for those aging alone and without a family support network. They need to consider their current living arrangements and compare it to future expectations. It is important to examine the services and amenities available in the community, such as mobile meals, public transportation, and home healthcare.

 You should get your legal documents in order, like determining who’ll be your healthcare proxy, if you are unable to make decisions about your own health. If you don’t have someone in your personal life who can take on that responsibility, look at elder care options so that you can identify someone to speak on your behalf if you’re unable to speak for yourself.

You should talk to an attorney who specializes in Elder Law to help you.

 Since individuals and communities continue to look for solutions to this issue, it’s increasingly important for people to be effective self-advocates. Those without family to help care for them during their senior years should act to address the issues that may be coming in the future.

Plan for the future and take action to see that resources are in place to allow you to age with independence and dignity.

Reference: The Enid (OK) News (March 19, 2017) “Many seniors age without support system”

Recording of my conversation with the host of Golden Years in Alabama radio show Part 2

January 13th I was interviewed for the Golden Years in Alabama Radio show. It's a new show devoted to golden years issues that airs every Saturday at 2:30 pm on Superstation 101 (WYDE). 

In this last segment of the show I talk about:

healthcare advocates

sustaining quality of life

How our Life Care Planning process differs from one-dimensional, traditional elder law practices