The Bill Kumpe Law Firm

THE THREE PHASES

 OF A PROPER ESTATE PLAN

When you say “Estate Plan” most people think of a will or a trust.  And, that is correct to a point.  However, a proper estate plan should contain more.  An estate plan is more that just a means to divide up your assets after you no longer need them.  A proper estate plan takes into consideration the possibility that you may become disabled and not able to manage your own affairs and also expresses your wishes about end of life and near end of life health care.  Consequently, a proper estate plan consists of three phases, before death planning, near death planning and after death planning.

BEFORE DEATH PLANNING:

As health care and medications improve, we are all living longer.  But frequently, our physical body outlives our mental capacity.  Alzheimer’s Disease, Senile Dementia, stroke and other ailments frequently cause an otherwise healthy person to lose the ability to manage their own affairs.  This situation is best addressed by what is called a “springing power of attorney” which declares that should you be found incompetent to handle your own affairs, a person or persons named by you are authorized to conduct your business for you in the same way and with the same authority as though you were doing it yourself.  In Oklahoma, this form is dictated by statute and grants the “attorney in fact” that is the person you name to handle your affairs the authority to conduct your business for you.  This form also allows this person to make health care decisions for you and should make the appointment of a guardian on your behalf unnecessary.

NEAR DEATH PLANNING:

Modern medicine now allows doctors to both preserve life and extend death.  Just where medical efforts cross the line from the former to the latter is an intensely personal decision that involves the deepest moral and ethical beliefs of the individual.  The extent of near death care you desire is best addressed by an “advanced medical directive,” sometimes called a “living will.”  Oklahoma’s statutory form is complex and in my opinion somewhat in conflict with certain Oklahoma statutes which grant a presumption of life in health care decisions. To assure that the client’s wishes are followed, I recommend the National Right to Life Association’s “Will to Live” rather than the Oklahoma Statutory Advanced Medical Directive.  The NRL form was written by NRL attorneys to comply with Oklahoma law while providing the maximum protection for the expressed right to life of the patient.  It is written, not to extend the death of a patient, but rather to protect their lives should they be unable to speak for themselves.  Whichever form you choose, you will be allowed to state what end of life health care you wish to receive, what organs if any you wish to donate and who you desire to make health care decisions for you in case your expressed wishes are not adequate under the circumstances.  Since the power of attorney also grants many of these same privileges, it is usually best for the “attorney in fact” to be the same person as the person named to exercise you “health care proxy” under the advanced directive.

AFTER DEATH PLANNING:

A will or a trust is the appropriate means of expressing your desires for the conduct of your business and disposition of your assets after your death.  If you choose a will, it should name a person or persons to serve as your personal representative after your death and dispose of all of your property after paying your final expenses and legitimate debts.  These tasks are usually handled through the probate process unless your estate is so small that probate is not required.  A trust is another matter altogether.  A trust is separate legal entity from the person creating and funding and will live on after the creator’s death.  If you have a disabled spouse or children their special needs should be taken into account as well.  In any case the goal is to pass along the your assets to the individuals you desire to have them in an orderly and cost effective manner.

SUMMARY:

You should consult an attorney about putting together an estate plan that covers all of the phases of life and medical contingencies through your latter years.  A will or a trust without the supporting power of attorney and advanced directive is not a complete estate plan and can leave your loved ones powerless to help you or manage your affairs in the wrong circumstances.

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RADIO APPEARANCE

Attorney Bill Kumpe will be the guest on KCFO's "Senior Class" radio program Thursday, March 22, 2007 at 3:00 P.M.   KCFO is at 970 on your AM dial.

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LEGAL WIT

The following are taken from actual transcripts:

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Counsel: Our objection Your Honor, and I want to make this very clear, is that there's a time when the truth has to stop and that time ....

Judge:  Why does the truth have to stop?

Counsel: Because the trial has started!

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Counsel:  Your Honor, I object to Counsel's characterization of this disagreement.  He is giving a one-sided view.

Judge:  Of course he is.  That's what you expect from a trial attorney!

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CHOOSING A PROPER

 NURSING HOME

Two or three times per year, I become involved in helping a client choose an extended care facility for their elderly parents or wards.  Here are some of the factors I go over with my clients in these discussions:

Health Care Availability:  Is the nursing home staff licensed and are adequate clinical facilities reasonably available?  One of the primary factors in moving one of my clients elderly mother from a home in Oklahoma to one in another state was the fact that the Oklahoma nursing home was a thirty minute ambulance ride from the nearest small hospital and there was no doctor in residence at the home or even in the town.  Her doctor was driving fifty miles each way for each clinical visit.  The decision to move her to a facility in another state that had doctors and RN’s in residence and was five minutes away from a major hospital with a respected geriatric unit was a no-brainer.  Always choose a home with adequate access to reasonable health care personnel and facilities.

Family Availability:  Elderly people will wish to be placed in a facility near their life-long residence.  While this is perfectly understandable, the people responsible for overseeing their care may live a considerable distance away.  Frequently, most of the elderly persons generation of family and friends will have already died and their children all moved away.  If at all possible, see if the elderly person will allow themselves to be placed in a facility near their children.  Even the best facilities need the help of family to provide the best care and patients who see family regularly will do much better and live much longer than patients who are warehoused in some distant facility where their family and friends cannot look in on them.

Safety:  I am constantly amazed at the level of violence that occurs in nursing homes.  We once had to remove a client’s mother from a facility because that facility was not protecting her from another abusive patient.  I recently heard a report of a pair of lovely old widows who share a room having a midnight visitor who “trashed” their room and became violent with them when they tried to stop the confusion.  The visitor was another patient in a wheelchair who was suffering from middle stage Alzheimer’s.

Services Needed:  There are a wide range of facilities available now offer varying levels of support as needed. A few years back, I assisted a family whose mother was in the first stages of Alzheimer’s disease.  She was able to live in a beautiful assisted living facility ran by the Marriot Corporation for over a year before she had to be moved to more restrictive facilities.  The place was very pleasant and operated like a residential hotel.  I would have lived there myself.  Many of these assisted living facilities provide just the amount of care needed while allowing the resident to continue with a fairly normal lifestyle.  As a rule they are not cheap, but if you have resources they are a wonderful alternative to a standard nursing home.

Cost:  The average cost of nursing home care in Oklahoma is $135.00 per day or a little over $4000.00 per month.  Medicare does not pay for nursing home care and Medicaid requires that the patient be indigent before they qualify for nursing home benefits.  Consequently, if you don’t have either a long term care policy or $50,000.00 per year in extra disposable income lying around, the cost of nursing home care can bankrupt all concerned.  Discovering after the fact that you don't have the money to place a parent in a nursing home despite their condition and the parent will have to sell everything they own to qualify for Medicaid makes for a grim, grim discussion in your attorney’s office.  There are no good options at that point.  Frankly, you have to plan several years in advance to be able to exercise your best options in paying for nursing home care.  

Summary:  No one wants to go to a nursing home and frequently when it becomes necessary, the decision will have to be made against the patient’s will.  It is usually a heartbreaking process that leaves everyone emotionally scarred. When the need actually arises, the process of choosing the proper facility and paying for it is not made any easier by the emotional burden of just getting it done.  Consequently, I advise my clients to investigate potential facilities in advance and make as many of the decisions as possible before the need arises.