Create Your Living Will Now to Ease Burdens Later Part 2

Posted on January 12, 2015 by Rick Messemer

Important Questions to Ask

When writing your living will, give serious consideration to the kind of treatments you want. Questions to ask yourself include:

  • How important is it to be independent and self-sufficient?
  • What would make me feel that my life was not worth living?
  • Do I want treatment to extend life in any situation?
  • Or only if a cure is possible?
  • How might my decision about life-sustaining treatment be different if I was 50, 70 or 90 years old?
  • Would the treatment lessen my suffering?
  • What kind of burdens and side effects will the proposed treatment impose?
  • What are the potential benefits and risks associated with CPR, a feeding tube, ventilation, etc.?

(Adapted from Mayo Clinic and American Hospice.)    

Weighing CPR

When a person stops breathing or the heart stops beating, medical personnel administer CPR, which can consist of two stages: chest compressions (forceful pressing on the chest to stimulate the heart) and artificial respiration (mouth-to-mouth rescue breathing). In addition, personnel may use electric stimulation and special medicines to resuscitate a stopped heart. CPR can help keep oxygenated blood circulating through the body, which can help prevent brain and organ damage. Without CPR, a person is likely to become unconscious almost immediately and will die in 5-10 minutes.

However, when a patient has an advanced life-threatening illness (such as late stages of cancer) and is dying, CPR may not provide any benefits (Family Doctor). Additionally, the survival rate after CPR is only 15 percent, but it decreases to 2 percent for the frail and elderly (Allina Health). If successfully, CPR may result in a sore chest, broken ribs or a collapsed lung, especially in elderly patients with fragile bones. Though they may survive, those especially who are older and/or frail may have a drastically reduced quality of life, suffer from brain damage or other health complications, and may require ongoing medical support (e.g., ventilator).

Other Treatment Considerations

Other treatment considerations to consider when executing a living will include (adapted from the Mayo Clinic and American Hospice):

Mechanical ventilation. A person who is unable to breathe sufficiently may need to have a tube inserted down the nose or throat (referred to as intubated), or surgically through the neck, into the trachea. This connects to a ventilator (breathing machine), which breathes for the patient. However, for those with certain lung and heart diseases, the likelihood of resuming normal functioning after removal from the ventilator is low. Intubated patients can’t talk and may need medicine to keep them comfortable. Some patients who survive may need to be on a breathing machine in the intensive care unit (ICU) for a while. Bacteria in the tubing can result in pneumonia, and patient immobility can lead to psychosis, skin breakdown and progressive weakness.

Nutrition and hydration assistance. To keep a patient alive, medical professionals will automatically supply the body with nutrients and fluids intravenously or via a feeding tube. If you are seriously ill or close to death, life-sustaining treatment will not be stopped unless spelled out in your advance directives. Permanently unconscious patients can sometimes live for years with artificial feeding and hydration. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

Admission to the ICU. The ICU is generally meant for a person who is reversibly critically ill and who desires full resuscitation should cardiorespiratory arrest occur. But patients can suffer from isolation, as visitors are restricted, and immobilization, as well as disruption by light, noise, diagnostic tests and therapeutic interventions, which are uncomfortable and potentially painful. A frail patient is prone to develop ICU psychosis.

Additional Considerations

Including a do-not-resuscitate (DNR) order in your living will may only prevent CPR, not other life-saving measures. Some people add a DNI—do not intubate. An alternative that is gaining popularity is AND—allow natural death. An AND advises doctors to offer only comfort measures, because any other aggressive treatment, such as intubation, may only prolong suffering. AND also conveys a positive, and perhaps gentler, message to those who must decide whether to continue life-saving measures for their loved one.

If your illness is terminal, you can also request in your living will that you want palliative care, which focuses on quality of life and dignity by helping a patient remain comfortable and free from pain until life ends naturally.

Some living wills encompass more than just DNR or DNI requests by spelling out your thoughts about dying, which can be more helpful to your doctors, friends and family when deciding what kind of end-of-life care you want. One of the more well known is Five Wishes, which goes beyond medical issues to deal with personal, emotional and spiritual concerns.

CAROLINA ESTATE COUNSEL offers free consultations on this and all Elder Law and Estate Planning, Medicaid and VA Aid and Attendance planning questions.

Write us today:   rick@carolinaestatecounsel.com

Or Call:  Rick Messemer, Certified Senior Advisor, Community Liaison– 919-656-2959

Kevin Huston, Elder Law Attorney- 919-450-8086

 

 

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Importance of your Living Will – PART 1

Posted on January 5, 2015 by Rick Messemer

 

Create Your Living Will Now to Ease Burdens Later 

(Part 1)

A living will is a legal document that indicates what medical treatments and life-sustaining measures you want or don’t want. If the time comes when you can’t make your own decisions, a living will can be valuable for your family and doctor and help ensure your preferences are honored.

Approximately 80 percent of Americans fail to share their wishes for their end-of-life care, leaving family members and doctors to decide what life-saving measures to perform. Not only can this result in family quarrels, but you may receive care that is more aggressive than you desire. For example, CPR (cardiopulmonary resuscitation), which has a low success rate, can be violent and leave patients in worse condition. Not only does it make sense to write a living will as you get older and become increasingly prone to chronic illness, but it is also wise to understand the treatment options and their risks. A living will is a legal document that indicates the types of medical treatments and life-sustaining measures you want or don’t want, such as cardiopulmonary resuscitation (CPR), feeding tube, and mechanical breathing (respiration and ventilation). In addition to a living will, people are also encouraged to have an advance directive known as a medical power of attorney (POA).

A medical POA is a legal document that designates an individual—referred to as your health care agent or proxy—to make medical decisions on your behalf if you’re unable to do so. Like the POA, the living will becomes a tool to help your family and medical staff determine the life sustaining measures and medical treatments to pursue at the end of your life if you are unconscious or not capable of deciding on your own.

In addition to executing a living will and medical POA, it’s important to discuss your beliefs and wishes with family members and your doctor. If they know beforehand what measures you want taken—and, just as important, why—when the time comes, the process can be easier and less stressful for everyone.

Please contact us today for a free, no obligation consultation.  We are happy to review all your existing documents and beneficiary designations.  “We make house calls!”

Rick Messemer – 919-656-2959   (Community Contact Person)

rick@carolinaestatecounsel.com

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Giving away my home to the “kids”

Posted on October 22, 2014 by Rick Messemer

You own a home or possibly a family farm and you’ve heard it’s a good idea to “give it to the kids”.  Maybe this is a way to help your children before you spend all your assets on health care or general living expenses.

Here are some thoughts:

  • MEDICAID: You’ve heard of the “5 year look back period”.  Basically, anything you gift had to be done so 5 years before you apply for Medicaid for Long Term Care needs.
  • WHO OWNS THE HOME?  Once you give the property to the kids, it belongs to them.  Quite honestly, they can do whatever they want to it at that point.  Make additions, take down the barn, pull up the flower bed.   It is their house now.
  • RISK AGAINST THE HOME:  If your children face a bankruptcy, divorce, or lawsuit these situations may necessitate the sale of the home you are living in to settle their claims.
  • TAXES FOR THE KIDS:  Let’s say you bought the farm for $50,000, you give it to the children, and they now want to sell it.  Today the property is worth 550,000.   Your children may need to pay a Capital Gains tax on the $500.000 profit. (If on the other hand, the property transferred at death by way of will or trust, the cost basis for the children would now be $550,000, thus NO Capital Gains Tax for your children.

There may be safer and more cost effective ways to transfer real property to your loved ones.  Seeking the advise of an experienced Estate and Elder Law Attorney would be a good place to start.

If you have any specific questions, please to do not hesitate to write:   rick@carolinaestatecounsel.com

Rick Messemer, Certified Senior Advisor    Community Education

 

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VA AID AND ATTENDANCE BENEFIT

Posted on July 21, 2014 by Rick Messemer

VA Aid and Attendance is a little known benefit that assists Veteran’s, their sick spouse or the widow/widower of a Veteran pay for the cost of in-home care, assisted living or skilled nursing care.

The ground rules are fairly simple:

  • The Veteran must have served during a period of way for at least one day, been in the service a total of 90 days and been discharged with any designation other than “dishonorable”. You did not have to be in a combat situation.
  • There is a need for care with several “activities of daily living” (ADL’s). These could be grooming, bathing, dressing, cooking, eating.
  • You must be spending your family income on the cost of care. Example: income is $4,000, your Assisted Living Community is $4,500.00
  • Your family assets must be within VA guidelines. Please note that as of this writing, there is NO “look-back” period like you’ve heard about with Medicaid.

Even though these rules don’t sound complicated, we suggest that every family thinking of applying seek professional help. Not providing proper information or omitting an important document can cause excessive delay or denial. Also, you would never want to move funds, give funds, homes, land, investments, etc. to qualify for the VA benefit that may hurt your chances for Medicaid eligibility if Skilled Care were ever needed.

NOTE: IT IS IMPORTANT TO USE A VA ACCREDITED ATTORNEY OR AGENT FOR INFORMATION PERTAINING THE BENEFIT.

Please contact us directly at: rick@carolinaestatecounsel.com with any questions on the VA or Medicaid application process.

Consultations are free and provided by Kevin Huston, VA Accredited Attorney

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Hearing Loss is linked to Memory Loss

Posted on July 3, 2014 by Rick Messemer

Johns Hopkins University School of Medicine conducted a study of 1,984 seniors aged 75 to 84 with it’s findings published in the JAMA/Internal Medicine.

The basic findings were that older adults with even mild-to-moderate hearing loss may experience a decline in brain function up to 41% faster or three year sooner than those not hearing impaired.

Reason: It seems the brain works harder to process sounds rather than directing energy to memory and thinking. Additionally, social isolation that occurs in the hearing impaired may result in cognitive decline.

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Wills vs Beneficiary Designations

Posted on May 23, 2014 by Rick Messemer

SO YOU HAVE A WILL!

A will is a very important document. It is how your wishes are carried out relating to who or where (possible charity) your assets will be distributed. You may have spent a considerable amount of time and money to get what you think is an “iron clad” will.

But maybe not!

Most families are not aware that their wills DO NOT have the final say concerning assets held in retirement accounts, like your 401(k) or individual retirement accounts (IRA’s).

The individual(s) you have placed as the “beneficiary” on these accounts will be the recipient no matter what your will may say.

If your life situation has changed since you first set up beneficiary designations, it is extremely important to check and see if those listed are still your first choice.

In North Carolina, we offer a free review of your legal documents (wills, POA’s, advanced directives) as well as investment and insurance beneficiaries designation accounts.

Contact: rick@carolinaestatecounsel.com

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Transferring Marital Real Estate into a Revocable Trust

Posted on February 21, 2014 by Rick Messemer

When married couples own real estate in North Carolina as husband and wife, such ownership is called Tenancy by Entirety ownership. Tenancy by Entirety ownership provides protection from creditors so that a creditor must have a valid claim against both the husband and wife before the creditor can place a lien on the real estate. If the creditor only has a claim against the husband, for example, then the creditor cannot attach a lien against the real estate. Tenancy by entirety ownership can protect all real estate within North Carolina, no matter how many properties are owned by the married couple.

Transferring the real estate into a trust forfeits the Tenancy by Entirety protection so that if a creditor has a valid claim against the husband, the creditor could then attach a lien against the real estate within the trust and could stake a claim over the husband’s one-half interest of the real estate within the trust. For married couples who transfer real estate into a trust, I recommend looking into umbrella insurance to cover any unexpected lawsuits that could arise. For most people the likelihood of any creditor problems is miniscule, however.

Because of the loss of creditor protection, some married couples opt to leave the house outside of the trust until one spouse dies, at which time the remaining spouse can put the house into the trust. The downside to that approach is the risk that both spouses could die at the same time or one spouse may forget to put the house into the trust after the first death. Also, if a revocable trust is set up for estate-tax avoidance, it is sometimes crucial that the real estate be put into the trust before either spouse dies for estate tax purposes. If you wait until after a spouse dies to put the real estate in the trust, then the entire real estate could be included in the surviving spouse’s taxable estate, which could result in additional estate taxes imposed if the survivor’s estate then exceeds the total estate tax exemption that exists at the death of the surviving spouse.

Ultimately, it is a very beneficial thing to have the real estate in the trust to pass to your final beneficiaries because: 1) it avoids probate and achieves the other objectives of setting up a revocable trust, including disability protection, estate tax avoidance, special needs protection, and privacy; and 2) the trust provides great creditor protection for your final beneficiaries as it is a shield from any of your beneficiaries’ creditors as long as it is held within the trust. For these reasons, the majority of my clients proceed in placing their real estate into their revocable trust.

Mortgage and Insurance Issues

A mortgage or line of credit on real estate does not hinder the owner from transferring the property into trust. There are federal rules that protect a homeowner’s right to transfer real estate into a revocable trust regardless of any mortgage or line of credit on the house without any danger of accelerating (calling) the loan. Generally homeowner’s insurance does not need to be reissued when moving real estate into a trust as long as you remain trustee of the trust. It is not a bad idea to contact your insurance carrier to see if anything additional needs to be done after putting it in the trust.

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Steps in Funding and Maintaining the Irrevocable Life Insurance Trust

Posted on February 21, 2014 by Rick Messemer

After the Trust has been executed by the Grantor and Trustee, the Trustee should establish a tax ID number (known as an EIN number) with the I.R.S. I would do that on the website of the I.R.S., which is www.irs.gov. You can obtain it the same day that you request it on the website.

Once you have the tax ID number, you are able to open a checking account in the name of the Trust. That would be the Trustee’s role, since the Trustee is the one who will have authority to deposit and withdraw money from the account. I usually wait until the Trustee receives the first premium payment from the Grantor before opening the checking account. The initial premium payment to establish the life insurance policy will be paid by the Grantor to the Trust. The check will be deposited into the Trust checking account. The Trustee then is required to give notice to all the beneficiaries that they have the right to withdraw their equal share of the payment from the Trust. Often the beneficiaries have a 30-day period in which to withdraw the beneficiary’s share.

The right of withdrawal is necessary in order for the payment into the Trust to be nontaxable to the Grantor. By allowing the withdraw right, the Grantor is able to use the Grantor’s annual exemption from gift taxes (currently $14,000 on a gift to any person per year), to exclude the payment from taxation. The Grantor can exclude $14,000 from taxation for each beneficiary of the Trust who has withdrawal rights. Thus, if there are ten beneficiaries with withdrawal rights, then the Grantor can put $140,000 in the Trust every year without paying gift taxes.

After the withdraw period has elapsed from the time the beneficiaries received notice of their withdraw right, the Trustee is then free to write a check from the Trust checking account to pay for the premium on the life insurance policy. This process will be repeated every year of the Grantor’s life as long as the insurance policy is in effect. Each payment by the Grantor must come into the Trust checking account. Notice must then be given to the beneficiaries, and after the withdrawal period the Trustee can pay the premium from the Trust checking account.

Here is the summary of the required steps:

• Execute the Trust

• Trustee establishes EIN number for Trust

• Trustee receives check from Grantor and opens up the Trust checking account

• Trustee sends notice of withdraw right to each beneficiary.

• Beneficiary has 30 days to notify Trustee of exercising the withdrawal right.

• After 30 days have elapsed the Trustee can use the remaining cash in the checking account to pay the premium on the life insurance policy.

Kevin Huston Elder and VA Accredited Attorney (919) 741-6565

Rick Messemer Community Liaison (919) 656-2959

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Downsizing is about asking the right questions

Posted on December 9, 2013 by Rick Messemer

I spoke with Julie Kopetsky of Your Next Move, who offered some hints on downsizing and what to look for. If you use a service to assist in your move and the sale of your existing home look for the following questions:

Questions about your lifestyle, the style of home you like most, the size of the home (will you need an extra bedroom for guests) or possibly clinical and supportive needs. It should be determined if independent living is suitable or possibly independent living with added services like housekeeping, assistance with meds or bathing. You may need assisted living level of care or based on your physicians statement, skilled nursing.

Will the firm (or your family) be able to find several communities that meet your needs and wishes? At what price point? Will you be able to visit the properties on a personal tour?

Questions will arise about your existing home, your cherished possessions, what you will take, and what will you give to family or charity. Will there be a garage or estate sale and who is deciding what to sell?

Who will coordinate the move and set up of your home in the new community?

Moving from your home to a community can be very stressful, but with the right team of helpers and advisors like Julie, the outcome can actually be pleasant.

If I can help you work through this process or connect you with Julie, please let me know.

Rick Messemer, Certified Senior Advisor
Carolina Estate Counsel- Estate and Elder Law Attorneys
rick@carolinaestatecounsel.com

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