Estate Planning for Blended or Nontraditional Families

A blended family or nontraditional family is a family in which one or both of the adults have children from a previous marriage or relationship.  In case you’re thinking “I didn’t have an estate plan for my first marriage –why would I need one for the second one?”  you may be overlooking the” details” of your children or grandchildren or unfamiliar with how best to take care of your second spouse or partner!  If you have children from a previous marriage, you may want to determine how your second spouse or partner and your kids will divide your estate.  Longevity (incapacity) planning looks at how the decision-making responsibilities will be shared among the family members or loved ones involved.  Both the estate and longevity planning will depend on your age and circumstances, as well as how old your kids are, and you may consider whether there are educational expenses or grandkids you want to provide for, and so on.  This is an especially important discussion to have with your second spouse or partner so that the concerns, goals and techniques are clear going forward.  A blended family situation is more likely to be driven by different estate planning goals for husband and wife or  life partners, than in a marriage or partnership the first time around – when a couple may be younger and share more common goals and there is typically only one set of children.

This estate planning, like all others, starts with a discussion.  So – what are some of the benefits of blended families estate planning?

  • helps identify goals of each spouse or partner – who they want to support and for what purposes;
  • can bring clarity for who provides what kind of support for  whom;
  • takes into account any pre-nuptial or post-nuptial agreements (these are known as “marital agreements” under Colorado law);
  • sheds light on financial and medical concerns and authority to make decisions in the event of incapacity or death.

If you are concerned about any of these issues and want to avoid a conflict-laden situation where  your surviving spouse or partner may be at odds with your kids or other family members, it is worth looking into making a plan.  A comprehensive estate plan will take into account your probate and nonprobate assets, the beneficiaries, and will also provide powers of attorney to provide for your welfare during short or long term disability or incapacity.  Read the CBA Estate Planning brochure

If you are looking to the future together and are realistic, making an estate plan can help cement expectations.  I liked this Ehow article on “How to Blend A Family,”  and no, it doesn’t involve a small kitchen appliance!

The term “blended families” doesn’t just apply to married couples – it can apply to unmarried couples as well, including a man and woman who could decide to marry each other if they chose to at a future date, or a same sex couple whose partnership may not be recognized as a marriage.  In Colorado, unmarried persons have the option of giving certain rights to another unmarried person through a Designated Beneficiaries Agreement. Find general information about Colorado Designated Beneficiaries Law here.

This agreement can provide benefits to the survivor of the two parties to a DBA, but does not provide disposition of property or confer rights for the second to die.  More information in my article here.

Okay, you may be interested in looking into this further, but maybe you don’t yet have a clear picture of what could happen if you (1) do nothing or (2) make assumptions without consulting the spouse or partner.  What are some things that could go wrong?

  • old wills and other plans are still in place that do not reflect current goals and concerns;
  • if you have minor children, outright gifts to them may be controlled by your former spouse;
  • picking a personal representative, guardian, trustee or co-trustee or other key people who do not get along with each other;
  • making your kids wait until the death of your surviving spouse or partner to inherit anything, which can fuel resentment;
  • failing to update beneficiary designations on nonprobate assets like retirement accounts, pay on death accounts, etc.  (these are not automatically changed as a result of divorce);
  • leaving everything to the surviving spouse or partner and assuming that he or she will “take care of” your kids; and
  • [this one is not unique to blended families]  leaving large amounts of money or property outright to someone who is not prepared to handle it – a/k/a the lottery effect.

If you are part of  a blended family and haven’t discussed with your spouse or partner what your wishes are, you may want to start that initial conversation – the first step to making plans.

Difficult Conversations About End of Life – DNR vs. Health Care Power of Attorney

What many people don’t want to consider – is the prospect of when a person’s DNR/DNI (do not resuscitate/do not intubate) directions may come into conflict with what an agent under a health care power of attorney decides. When a surrogate overrides the patient’s stated wishes (for example, where the children’s interests in “saying goodbye” override a mother’s DNR wishes) Check out this very powerful video of two daughters recounting the difficult decisions they made regarding their mother’s health care.

This video highlights the slippery slope of medical intervention and not knowing when the intervention will end and a daughter’s grief about going against her mother’s wishes.  She poignantly describes her mother’s searching eyes which seemed to ask “why are you doing this to me?”  This is an excellent reminder for all of us, especially those who work with older people who are facing health challenges: have the conversation with your kids or other surrogate decision makers and make your wishes explicit!  It is also useful to note the ongoing need for what the medical document known as a DNR means –it doesn’t mean “no medical care” – it means do not resuscitate.

Between the short periods of time a doctor may spend (if any time is spent at all) explaining to an older person or one who has a medical condition or disease which would make a DNR, and the reluctance that most people have to talk to their loved ones about these difficult situation, these conversations are hard, but worth the effort according to all the people I’ve spoken to about it.  I always encourage my clients, and sometimes also participate in family meetings around this issue of facilitating a specific conversation about identifying a older adult’s wishes, talking about particular scenarios and using specifics where appropriate to illustrate how wishes might be carried out.

Daughter who decided, when asked by the doctor whether she would give permission to put her mother on ventilator decided that she would have done things differently and would have declined intubation.  Daughters could see the pain their mother went through and finally asked mother to respond by blinking to their question “do you want to be taken off the ventilator?”  Very powerful video I strongly recommend.  This is why I think it is important to take time with clients, who are willing and interested in getting real about the difficult end-of-life choice, to discuss with them and often with their adult children the difficult but inevitable prospect of “letting go.”

Along similar lines is an article by Sally Mauk in The Missoulian entitled “Doctor Says Advances Prolong Life, Make Dying Harder,”   The article pinpoints several of the difficult facts that we baby boomers must face in light of the experience of many of our parents’ deaths as well as medical and economic realities that have dramatically changed in recent years.  Mauk’s article is primarily about Dr. Ira Byock, a past president of the American Academy of Hospice and Palliative Medicine.  Byock’s website is www.dyingwell.org and his book Dying Well, published by Riverhead in 1997, is on my office bookshelf, and his newest book “The Best Care Possible: A Physician’s Quest to Transform Care Through the End of Life,”  is a book I’ll be reading soon.  It is best to take the time to start thinking about these issues so that a conversation with loved ones will be more likely and probably less stressful – start with your doctor and don’t forget to consider how the medical and legal documents can work together to support your goals.

What is the “Promise” of Elder Mediation?

The New York Times has a column entitled “The New Old Age” and in a post from today by Paula Span entitled “Care by Consensus” some of the challenges of getting a workable plan for caring for an elder who has no family members to assist in the process.  Many of us deal with these issues with siblings, children, aunts, uncles and neighbors involved.  Sometimes this involves effectively sharing  the burden of caring for an again or frail family member, and others it looks more like a power struggle, outright warfare or a means of unearthing long-standing ill feelings of “mommy always loved you best.”  This is discussed in a March 13, 2012, article in Forbes by Carolyn Rosenblatt titled “Aging Parents, Embattled Kids: Can You Find Pain Relief?” Read it here.

As an elder and probate mediator, I found the ABA’s December 2010 Bifocal issue’s article by Ellie Crosby Lanier, “What Is Quality in Elder Care Mediation and Why Should Elder Law Advocates Care?” a bit more insightful as to available options.

Elder/Probate mediation requires a special set of skills. Many of us who are professionally trained mediators believe in the promise of this approach to conflict resolution, even though adoption and endorsement of elder/probate mediation is slow in coming.  Elder mediation is used in other countries, and perhaps the most informative and exhaustive work about its progress has been put together by The Center for Social Gerontology.  You can find the voluminous document here.

What kinds of disputes is mediation particularly well-suited in the elder/probate context?

  • Decisions about care management/ living arrangements
  • Productively managing independence (driving, autonomy)
  • Concerns about loss of financial control and responsibility
  • Adult children and “fairness” among siblings, expectation of heirship
  • Facilitating capacity and managing incapacity
  • Trusts and estates disputes
  • Medical decision making and responsibility

Just to name a few.  These disputes don’t need to simmer before they boil.  But sometimes a health crisis or an elder’s failure to plan can bring certain latent situations to active conflict.  Often the person who suffers most as a result is the elder, because they may (or may not ) be aware of the conflict, and its potential to wreak havoc.

I think part of an attorney’s informed consent is an exploration of the options – from the interest-based peace-making options to the no-holds-barred litigation scenario.  The challenge is that many of my colleagues know little about the peacemaking or mediation option, so it is a legitimate question to ask “what it would look like,” along with “how do I find a good elder mediator?” Read “A Referee for Family Disputes,” by Anne Tergesen, from the Feb. 5, 2011, Wall Street Journal. Lots of folks have commented on it. Check it out.

 

Law As A Healing Profession

For you detractors who scoff at the idea of law as a healing profession …

I was inspired to write this post after reading a recent article by Mark Glover, “A Therapeutic Jursiprudential Framework of Estate Planning,” in 35 Seattle Univ. L. Rev. 427 (2012).

The author is an assistant professor at Louisiana State University.  The article begins with a reference to Moby Dick – specifically when Ishmael’s brush with mortality in the attack on the longboat in which he was riding was attacked.  Having survived the “jaws of death,” Ishmael subsequently puts his affairs in order and makes a will, and feels as if a stone was rolled away from his heart.  Glover’s article looks at therapeutic jurisprudence, the aim of which he describes as “to shape the law in a way that maximizes its therapeutic potential without undermining the law’s fundamental purposes.” at 429 (citation omitted).  Why did I read this article and describe it here?  Glover’s stated aim is to spread the word about therapeutic jurisprudence in the estate planning and administration context.  I was interested!

I liked his point about one of the “antitherapeutic”  aspects of making and finalizing a will – that the experience is essentially “taboo-defying,” and as such, tends to be upsetting to many people.  In my experience I think this is a stretch.  I work with many people who have been thinking about estate planning for a long time, and it takes them a while to come in and get started or to complete the process.  I can also say from my own experience of updating my will and POA just several weeks back, that a couple folks in my office looked at me as if I was not telling them something important about my life (or death).  Therein lies the taboo.  It is insidious!  Next he identifies seven concerns that psychologists have identified that lead to a fear of death:

  1. They can no longer have any life experiences;
  2. They may be uncertain as to what will happen to them if there is a life after death;
  3. They may be afraid of what will happen to their bodies after death;
  4. They realize they will no longer be able to care for their dependents;
  5. They realize that their death will cause grief to their relatives and friends;
  6. They realize that all their plans and projects will come to an end; and
  7. They may be afraid that the process of dying will be painful. (citation omitted)

Avoiding estate planning helps some people avoid thoughts of their own mortality. I must ask the practical question – and how is this a good thing? It is about perpetuating death-denial that pervades our culture.  The crazy thing is that busting the “taboo” of thinking about death by making an estate plan is – I believe – an invaluable way to think about what is important to us in our lives right now, and are we living the kind of life for which we want to be remembered?  I already broached this topic in an earlier post, about writing your obituary now. [link to post]  From this article I learned of a study that (more than thirty years ago) that referred to the professional estate planner’s anxiety about raising the issue of mortality with clients?!  I don’t think I know of colleagues with that type of skin.

Glover also looks at estate disputes and familial conflict and the tangled web of concern over who gets what when there are children and assets involved and everyone may not get along.  I liked his footnote citing an article by M. Begleiter entitled “Anti-Contest Clauses: When You Care Enough to Send the Final Threat.”  This is a primary reason that I advocate mediation clauses in wills. The mediation clause cannot, under present law, force disputing parties to go first to mediation prior to a challenge in court, but a testator can certainly express herself about how she intends her children to get along and resolve any disputes they may have. A good article by Lela Porter Love about mediating probate matters to preserve and promote family harmony can be found here.

In the second half of the article, Glover finally gets to looking at the “therapeutic consequences” of estate planning.  He seems to start with the premise that only sailors on whaling ships (like Ishmael) should be entitled to feel good about getting their affairs in order.  I would tend to disagree!  One of the first benefits he discusses is that of self-determination, namely that deciding in advance who will be your beneficiaries knocks out the possibility of others determining the distribution (even “the government” meaning state laws of intestacy).  He also cites a helpful article about the “Power Tools” of estate conflict management by Paul Fisher, available here.

Finally, I liked what Glover had to say about the will execution ceremony.  It is and ought to be recognized as an important achievement, one which should provide the testator an amount of satisfaction.  The typical will ceremony in Colorado involves two witnesses, and can provide a certain amount of relief in that the anxiety remaining about mortality will often be replaced by a feeling that a person has put his or her affairs in order.  The last bit of fascinating information in this article concerns the origins of the Nobel prizes.  Grover points out that Alfred Nobel was the reader of a premature and highly critical obituary, as it was erroneously originally reported that Alfred, not his brother Ludvig, had died of a heart attack.  As a result of the “merchant of death” description in the obituary, Alfred Nobel bequeathed the bulk of his family fortune and his family name to the prizes that rewards persons making contributions for the benefit of humanity.  I recommend this article for reading by anyone who questions the therapeutic benefits of making a will, writing a testament, or executing durable powers of attorney.

 

Write Your Own Obituary

Many of us who focus our practice on estate planning encourage our clients to write an ethical will or include a testament in their will. Is it “over the top” to write you own obituary while you are taking stock of what is important to you in terms of your property, end of life decisions and choosing trustworthy agents for your durable powers of attorney?  I would say no, not at all, and many people would agree.  What do YOU want to be remembered for?

You may have had the opportunity to write a funeral notice or obituary for a deceased parent or other relative.  For many of us this was quite difficult, so if we’re already doing the “heavy lifting” of making a comprehensive estate plan – why not include the obituary as well?  A helpful tip about writing your own obituary might include “remember, it’s not a job application,” so your résumé may not be appropriate; and you may want to think deeply about what you want to be remembered for – considering all the different people and facets of your life.  Click here for some helpful tips. If this still sounds like too much for you, you might consider taking stock of your life right now (after all, dying is part of life) or giving yourself another 20-50 years and coming up with an unconventional demise – as in another helpful article.  The writer Brad Meltzer’s Ted video is very thought-provoking, you can view it here and go through his exercise.  I like his legacy-based approach, which focuses not on what you did for yourself (your education, etc.) but what you did for others.

How to get started? You can stick with the more traditional template for the obituaries and funeral notices that you typically find in the newspaper, or you can go beyond that into what Meltzer suggests – look at your personal, family and community legacies (the “who” of remembrance), and beyond that into the “what” – the actions for which you want to be remembered.  Things like what you do for perfect strangers, for other people. Are you living what you want to be remembered for right now?  This is where the transformation can take place, because each of us has the choice about how we live right now, to be remembered for your kindness, acts or charity and the like – that is true immortality.  I think of G.K. Chesterton’s quote here: “There is a road from the eye to the heart that does not go through the intellect.”  I must thank Sue for giving me this idea for the post, in an  indirect sort of way.

 

 

New Insight Into Causes of Alzheimer’s: It’s Still A Mixed Bag

A recent Mayo Clinic study asked “Does Overeating Cause Memory Loss in Older People?”  This is just too simple – isn’t it?!

This study looks to be like many of the studies ongoing with new technology enabling brain scans and better targeted cognitive tests – preliminary and giving only “suggestions” about causal relationships.  It is indeed a slippery slope to identify the boundary between age related “mild cognitive impairment” and Alzheimer’s disease.  A bigger question of course is what does “healthy aging” look like for the unprecedented numbers of people over age 80 that presently reside on the planet?  There are also people (medical doctors) who question the whole categorization of Alzheimer’s and other forms of dementia.  The National Institutes of Health fact sheet on Alzheimer’s disease offers the following:

“Scientists don’t yet fully understand what causes Alzheimer’s disease, but it has become increasingly clear that it develops because of a complex series of events that take place in the brain over a long period of time. It is likely that the causes include some mix of genetic, environmental, and lifestyle factors. Because people differ in their genetic make-up and lifestyle, the importance of any one of these factors in increasing or decreasing the risk of developing Alzheimer’s may differ from person to person.”

A recent study in the United Kingdom led to a discovery that in mice, certain proteins may block the progression of Alzheimer’s, particularly the toxic effect of the amyloid-beta protein. Read it here.

One of the tricky things about Alzheimer’s is that its progression is far from uniform (except in the case of younger onset, familial Alzheimer’s, which is most likely what the patient of Dr. Alzheimer suffered from) and people suffering from dementia often die from other causes.  So don’t think that you can usually go into a neurologist’s or geriatrician’s office and get a conclusive diagnosis of Alzheimer’s or staging of Alzheimer’s, an effective treatment or a cure for Alzheimer’s or many other types of dementia anytime soon.

Here’s a rather odd twist in the field of dementia and spirituality – which hasn’t been studied much.  The original research article published by Amy Owen and colleagues at Duke University is entitled “Religious Factors and Hippocampal Atrophy in Later Life,” which is available here.  It is one of just a handful of studies about spirituality in later life.  Several previous studies had indicated positive effects for elders, especially those suffering from dementia, who were part of a religious congregation or community.  A Scientific American article by Andrew Newberg discusses the study in his article “Religious Experiences Shrink Part of the Brain,” and you can read the article posted May 31, 2011, here. It contains plenty of very interesting comments about the methodology, causality and other factors in the study and the conclusions that may be drawn from it.

Dementia and Baby Boomers – you don’t have to be old to suffer the ravages:  “Dementia’s Youngest Victims Often Defy Stereotypes,” in  USA Today online from March 23, 2012. Read it here.

Dying is Part of Life

Dying is part of life – so why is talking about it so difficult?  Many reasons for that unanswerable question, but now – more than ever is the time we can start reflecting.  Never have we had so many octogenarians and nonagenarians on the fact of the planet.  Many are living longer more productive lives than they ever dreamed possible.  Some, many of them women, are running out of money.  As the life-extending reach of medical technology continues, it forces many questions, some of which are very uncomfortable.  I just read Judith Johnson’s fourth installment in the series of posts about making peace with death.  You can read it here.

Not all of us are afraid of death (which is one thing) or afraid of the process (quite another for many of us).  The Woody Allen quip comes to mind: “I’m not afraid of dying, I just don’t want to be there when it happens.”  Why does the dying process have such a bad rap?  Is it the uncertainty of what is happening, where someone is going (or not) that makes so many of us turn away?  It is a taboo based on fear and avoidance, how odd that it is avoidance of the inevitable.  How does that turning away from dying get unpacked into steps you can try if you want to be “present” and make peace with death?  Johnson offers five practical steps:  (1) see death as normal (part of life); (2) don’t try to run away or avoid it – this is the biggest tip in my opinion because she touches on the recognition that “death is a great teacher of how to embrace and honor life more deeply;” (3) focus on being of service to those involved in the process; (4) be authentic and express yourself in loving ways; and (5) allow yourself to experience the full range of grief and sorrow that are all parts of dying, death and grief.

I ran across another article about a new course being offered on Gabriola Island in Canada called “Nothing Left Unsaid.”  It looks to be an extension of the hospice conversation and all the services it offers for those not necessarily in the end stages of an illness.  I found the article’s reference to grief perhaps being classified as a mental illness in the next DSM (Diagnostic and Statistical Manual), and that reminded me of another article about that very topic – “Should Grief Be a Mental Illness?” by Joseph Nowinski, Ph.D.  It seems this fear that grief will be classified as a mental illness originated in a January 25, 2012 article entitled “Grief Could Join List of Disorders” and announces that, based on a new report, the criteria for depression are being reviewed by the American Psychiatric Association and could be expanded to include grief in the DSM-V.  Where does this leave those of us who are challenging the death-denying traditions and practices in our own ways? I think it is life-denying, because death is part of life.

The mental health implications of removing the grief exclusion from the definition of depression in the DSM-V are controversial, to say the least. Most of old age, along with many aspects (behaviors) of childhood are now “disorders” or fall within some arguable definition of a mental illness.  What does this say about our culture and its views towards aging, the dying process and death?  It is more of the death denial in our culture.  According to many longevity seekers, death is not necessarily inevitable or the result of natural consequences, rather it is more like a disease to be overcome, a challenge to be bested.  This reminds me of Dr. Sherwin Nuland, author of “How We Die,” and several other insightful books  A recurrent theme in his books is forthright talk about aging, dying and many other life topics that tend to make us uncomfortable.  Next time I’ll write about another favorite doctor/author of mine.

Welcome to My Blog

I have a new logo, and I’m pleased to say that the day I purchased it and printed it out, I was able to ask a client what he thought about it, and he immediately recognized it as a tree and made the “tree of life” connection. Yes, that’s the tree I’m talking about! My logo is a tree that also looks like a person who is embracing a community. I think this is particularly relevant to what I do because I work to help my clients put together a holistic plan for their future – one that is consistent with the values a person has lived by and which honors the relationships with family and community members. Holistic planning can also involve peacemaking. The tree of life connection is especially meaningful to me because it symbolizes the transitory nature of our lives and the relationships, in the context of certain unchanging constants. The tree of life symbolizes a simple message of unity, that we are all part of a community and it is represented in a number of different cultures, myths, faiths and traditions across time and geography. It is an important symbol for my practice philosophy because I seek to assist my clients in identifying ways they can maximize the support and connections they need from others during their lives and so they can transmit their legacy after they are gone.

I mention the Tree of Life specifically on my blog page because my blog is the place where the diverse but related interests will converge. We have never before had so many 80 and 90 year-olds on the face of the earth. What are the implications for law, ethics, medicine, philosophy? These are all appropriate aspects of identifying a strategy for clients because a sound plan must take into account the “ripple effect” of individual actions that relate to financial, emotional, medical and physical considerations that are often relevant in the legal context.