Stupid Lawyers

Thanks to Google Alerts I got to read this forum exchange: drafting documents yourself. valid?. My subject line says what I took away from this short exchange.

I have written before on here about using online or computerized legal forms. They area fact of life that lawyers needs to start acknowledging and get our heads out of the sand.

Lat night, I ran across the Funded Founders Institute and its agreements page. I am still puzzling over this one, but for the lawyers reading this I think the point is their sophistication. Which might even cause more problems for consumers.

The general public will use online forms because they see a way of saving money. The general public needs educating that with these forms you get what you pay for. If you do not use them correctly, then you have a good shot at paying a whole lot more to get the problems corrected than what you spent to create the problem.

I have no problem if a client uses an online form as a draft that they want me to review and tweak. Here lies their true worth: they get the client thinking about the subject (cohabitation agreements, prenuptial agreements, power of attorney, etc.) and that can be the hardest part in any conversation about the subject (cohabitation agreements, prenuptial agreements, power of attorney, etc.).

So, people, use them but get a lawyer to review what you are doing. Yes, you will save money and maybe even more than you think.

Why a healthcare power of attorney?

If you want to know why - and get a taste too of the problems wielding a health care power of attorney, then read the The Boston Globe's Families grapple with anguish of DNR orders:

"For families facing the impending death of a loved one, few topics trigger more anguish than the Do Not Resuscitate order. The subject can be so painful that relatives and doctors wait too long, until the patient's mental capacity wanes and the tough decision is left to family members. There is little ambiguity in a DNR order: Emergency medical staff must withhold CPR and other life-reviving treatments if the patient's heart or breathing stops, allowing death."

Advanced Directives - Why You Need Them

VA Family Law Blog has a great post on why people need a Living Will. Even when you get past the specific Virginia issue that seems to prompt the article, I got to say the following reasons apply to Indiana. The only thing I would add is that not only is a Living Will needed but also a health care power of attorney as well as a durable power of attorney. (We call these things advanced directives.)

You might want to read all of Keeping government out of your death: Terri Schiavo is not the only reason you need a Living Will but here is one paragraph that caught my attention:

"Despite the enormous expense, live-televised drama and the emotional burden of the Schiavo case, plenty of folks still do not have Living Wills. A Living Will states what you want done in the event that you find yourself in a position like Schiavo. It takes the burden off your family. Some people say that they know their loved ones would do the right thing. They are confident there would be no family battle."

All that is so true. I have been trying to educate my clients about the need for advanced directives for these very same reasons. I received nothing but silence. I do not quite understand the silence - I assume that no one really wants to be thinking about death or disability. The problem lies in a situation where a spouse is in a coma and action needs taken. Without a Power of Attorney, the costs for taking action grow geometrically. Maybe I just did not put all this as well as did the VA Family Law Blog:

Would you want to be deprived of food or water if you were in a persistent vegetative state? What about heroic measures, like resuscitation or a permanent electronic breathing apparatus — would you want those things used on you? What if you were terribly ill, like with end stage cancer or advanced Alzheimer’s disease? Talk to your loved ones about it. Then get a Living Will. Whether you want all efforts made, none or something in between, get this inexpensive legal document drawn up to make what YOU want clear for your family and the medical professionals who want to help you. It is the best way to prevent politicians and other officious intermeddlers from making you their political hay.

HIPAA information

Credit a Google search gone astray for this post. HIPAA manages to get itself intertwined into several areas of my practice without really being part of my law practice. I took a look at an entry for the Health Care Law Blog on new enforcement procedures. If you have an interest in health care law, I suggest you take a take a look at the whole blog.

That page took me to the enforcement page at the Health and Human Services website. Further links go to pages detailing the enforcement process, enforcement highlights and case examples.

For consumers, I suggest also checking out this page which links to more educational pages of a general interest. Lawyers should find the links to statutes and the federal regulations of some use, too.

Final Resting Place a Gas Tank?

Combining estate planning and funerals homes is rather common in my practice. Combining those subjects with cars is uncommon. If you listen to National Public Radio, then you are probably aware of the show "Car Talk." No other show mines the humor in car repair and maintenance as does "Car Talk". I never thought the show would be the subject of a blog post, especially one related to estate planning. Actually, the show was the subject of posts on two different blogs and this is the third. The following is from Charles R. Goerth's blog:

Disposal of remains is not a laughing matter, but laughter can be excused if the remains are one’s own, I guess.

That’s what I concluded upon reading the posting today on Neil E. Hendershot’s Estate Planning Blog relating the Car Talk exchange between Click and Clack regarding use of an automobile to dispose of one’s cremains. (Cremains is the current descriptor in some quarters for cremation.)

Yes, that kind of topic does raise an eyebrow or maybe both. Both previous writers handle the issue quite well, but I came to a stop at this point:

Thinking about what to do with cremains is a question which comes up regularly in estate planning consultation. But first, recognize that this direction for disposition of remains shouldn’t appear in a Will. It should go into a Health Care Power of Attorney.

Mr. Goerth does not explain that a Will does not get probated until after the funeral. As in Pennsylvania, Indiana law gives the person designated to have the power of attorney (they are called an attorney-in-fact) under a Health Care Power of Attorney the power to decide on the principal's (that is the person creating a Power of Attorney) funeral arrangements. However, Indiana law also provides another method for the setting up of funeral arrangements prior to death. This other method is a pre-need funeral trust.

I always mention a pre-need funeral trust to my estate planning clients. The funeral homes do the paperwork for this kind of trust. The client would go to the funeral home of their choice, make their funeral arrangements (and I am including cremation when I use "funeral" here), and an insurance policy is bought to fund the trust. Nothing further needs done by anyone - client, family, or attorney-in-fact - when time comes to make any funeral arrangements. The client receives the funeral that the client wants without imposing upon the attorney-in-fact the hard choice of making funeral arrangements.

Advanced Directives - Good Idea from Vermont?

From the Elder Law Prof Blog:

Vermont agency establishes advance directives registry

Vermonters can now file an advance directive that will ensure that a person's critical health care decisions will be honored during a time of incapacitating illness, coma, or end-of-life care. The advance directive will be maintained in a registry called the "Vermont Advance Directive Registry" established by the Vermont Department of Health. Locating the documents and finding the proper designated "agent" to make health decisions is often a stumbling block to following patient wishes when the patient is unconscious or unable to communicate. "This new registry marks a significant innovation and added protection for Vermonters," said John Campbell, executive director of the Vermont Ethics Network. "It provides the peace of mind and security of knowing that their wishes, exactly as expressed in the advance directive, can be available immediately in a medical emergency or critical care situation.Publish

Source: Emax Health News, http://www.emaxhealth.com/24/9447.html

If this registry allows for access by all healthcare providers and the ability to locate the attorney-in-fact, then I would say this is something Indiana ought to look into. I assume that it is digital. Doesn't make much sense if it is not.