Legal Issues to Consider Before the Death of a Loved One by Shelley Thompson, Esq. 1 When a loved-one is suffering from a terminal disease or normal complications associated with aging, often the last thing on their mind is helping them address legal issues. Indeed, the thought of legal issues becomes complicated to the point you or your loved one may become frozen at the thought of addressing them. This article is intended to help you narrow down the issues to address and provide a checklist of things to consider before the possible death of a loved one. Healthcare Documents First, inquire as to whether there is a healthcare or medical power of attorney (“HCPOA”) in place for your loved one, where it is, and who has copies. Be sure it notes the contact information for the person responsible for acting on behalf of your loved one on medical issues. In Colorado, your loved one is permitted to make his or her own decisions on medical care, unless he or she can’t communicate, in which case the person he or she has named as his health care “ agent ” may communicate for him or her. It is important that the right people have this document, and the contact information for the agent is stated. 2 Second, find out if a “ HIPAA Release ” exists for your loved one. A HIPAA Release is a document that allows your loved one ’ s designated friends and family to receive access to his medical status and records if he or she can’t communicate , and for a period after his or her death. The HIPAA Release is important, because without it, a healthcare provider may withhold information from loved ones. Third, ask your loved one if he or she has a living will. A living will is a short document that allows your loved one to decide in advance whether he or she wishes to be kept on life support in the event he or she is in a coma with an irreversible illness or injury. It also allows him or her to specify the number of days he or she would like to be kept on life support after a doctor has made the determination his or her condition is irreversible. Note, he or she may want his HCPOA to specify that the living will prevails in the event of conflict between the two. In other words, he or she may want to entrust his or her health care agent with all medical decisions he or she cannot make, except for the one decision he or she has taken away from loved ones – that he or she does not wish to be kept on life support. Some clients ask, “ what is the difference Between a Do-Not- Rescusitate Order (“DNR”) and a living will? ” A DNR states that your loved one does not wish to be resuscitated if he or she is under cardiac arrest or similar condition. As a result, this document should only exist in the rare instance that its maker is terminally ill or very elderly, and has determined, thoughtfully and unequivocally, that he or she has spent adequate time on this earth. As an aside, with respect to healthcare, consider using a website like Caringbridge.com, or a similar mechanism, to easily keep loved ones informed of the status, wishes, and circumstances surrounding a loved one ’s illness . Loved ones will greatly appreciate being kept 1 Shelley Thompson is an attorney with Allen & Vellone, P.C., in Denver, Colorado. She handles complex disputes and litigation, and provides estate planning for high-net-worth families, families with small to mid-size estates, and non-traditional families. For questions on this article, you can reach Shelley at 303-534-4499. 2 As an aside, some young women prefer to note in their HCPOA how to deal with decisions in the event they are pregnant when injured.
apprised and advised of when and how they can help, yet using such a site means you won’t be obligated to make dozens of phone calls with each piece of news. Wills and Trusts Ask your loved one whether he or she has a will or trust in place, and where the original is. Then, ask whether he or she has reviewed it within the past several months? Does it still meet his or her wishes? Offer to discretely read it aloud to him or her, or read and thoroughly summarize it for him or her. Often, people who are in the last stages of their lives are mistaken about what their will says or do not realize it was never changed to account for certain wishes. Once, a client asked me to amend his will and bring it to his bedside during, what we did not surely know at the time, were his final days of life. The amendment was to change a cash gift he had left to a beneficiary from a dollar number to a percentage of his estate. This was based on the fact that the amount he was leaving to his wife was unclear, due to fluctuating real estate values and uncertainty with respect to his medical condition. The decision and timing were, luckily, exactly right. We executed the amendment, and my client, sadly, died just two days later. After reviewing how his assets were titled, we then realized that had the amendment not been made, he would have unintentionally left his wife 50% less than he had intended, all because of an unintentionally overly generous gift to another beneficiary. Note, financial Powers of Attorney work during incapacity, but not after death. So while a Financial Power of Attorney may allow an agent to speak for your loved one in the last months of his or her life, when he or she needs help executing his or her affairs, it will not allow the agent to take care of things after his or her death. Only a will or trust works after death. Watch Out For This Hidden Trap For The Unwary : Your loved one may not realize that joint accounts, life insurance proceeds, and IRA’s do not pass according to his or her will. They go wholly to the person named on the account or on the beneficiary designation, regardless of what his or her will says. So for example, if your loved one has named, in his or her will, his or her three children to receive his or her estate equally, but he or she has one daughter who helps him or her manage his or her affairs as a joint owner on his or her checking accounts and home deed, then the end result may be quite different than what he or she intended. The daughter will wholly take the house and the cash in the checking accounts, and to the extent there are any other assets, they will be divided equally between the three children, including the daughter. After death, it takes little discord amongst siblings for this estate plan to result in damage relationships between siblings forever. So when reviewing a will with your loved one, be sure to also ask who is named on jointly held property, and on the beneficiary designations with the life insurance, and IRA proceeds. 2
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