Old Pueblo Legal Observer

Definiting the Persistent Vegetative State

By Elizabeth D. Spilotro

In preparing a full estate plan for clients, we always walk through the process of drafting health care powers of attorney and living wills to be prepared for the possibility of a medical crisis in which the patient/client is unable to speak for himself, and to direct loved ones how to proceed when the patient/client is facing the end of his life. The standard language directing doctors to provide “comfort care” or avoid “artificially delaying the moment of death” with which the medical community is most familiar usually makes sense and feels appropriate for most people. The challenge for many clients lies in understanding and feeling comfortable with what it means to a doctor that a person is in an irreversible, incurable, or persistent vegetative state, presenting a scenario in which the directed action should be taken.

A client told me about the JFK Coma Recovery Scale, a 23-item assessment tool to assist doctors with developing diagnosis, determining prognosis, and planning treatment for patients suffering from brain injuries. This scale is widely accepted in the medical community in discerning differentiating states of consciousness, and for accuracy in identifying varying states of awareness. A study referred to in The Economist indicates that many neurologists prefer to rely on their intuition rather than a scale in determining degrees of awareness and cognition among clients, which in a notable number of cases may result in inaccurate diagnoses.

A directive to doctors to use this scale may provide greater peace of mind to clients trying to be prepared for the wildly unexpected and wanting reassurance that the most clear and reliable diagnosis has been made. On the other hand, this scale may determine that a patient is “minimally conscious”, rather than in a “persistent vegetative state”, and thus in a condition that may only marginally improve with rigorous and extensive rehabilitation. Many clients may not feel that the improvement that might be achieved would render their life desirably livable, and might prefer to pass on quickly rather than linger in a compromised medical condition.

Regardless of one’s personal wishes, the availability of this tool as an option to guide medical treatment is something all clients should be aware of and give some consideration to including in their advanced medical planning.

The Perils of DIY Estate Planning

By Elizabeth D. Spilotro

 

As an estate planning attorney, I am frequently asked (usually by social acquaintances) whether a “simple” will or other document generated by one of the DIY legal document websites isn’t “just fine” or “good enough”. The answer I give is often some variation on the “would you do your own dental work?” response, as you might expect. But here are a few reasons why:

• Anyone with minor children needs to be especially attentive to detail when establishing even the most simple estate plan. (Not that anything is simple when children are involved.) Aside from providing for the children’s guardianship in the event both parents pass away, a will also needs to set up the right vehicles to hold property for a child until he or she reaches adulthood. The plan needs to be clear, meet all the child’s possible needs, place decisionmaking responsibility in the right hands, and most importantly be as free of administrative hassles as possible. Errors in drafting could result in unforeseen complications requiring ongoing court involvement and/or unnecessary expense, or fail to meet all of a parent’s expectations (limiting the use of funds for a child’s benefit to a more narrow - or expansive - definition than the parent would have wanted, for example).

 

• Program-generated wills are about as customized as t-shirts at Target. While some people may not have a lot of complexity in their lives, most of the people I meet as clients and as friends aren't perfectly S/M/L/XL. What if you are divorced? Have a blended family? A family member who you want to get “everything”, or nothing? Own an ongoing business? Aren’t married to your life partner? Or love someone who needs to be protected, whether from themselves or others?

 

• DIY programs often result in documents that get partway there, but then fall just a wee bit (or more) short. For example, I have seen wills that do not include any provision regarding what is to happen if none of the named beneficiaries survive. I have also seen trust documents (single page, 6-point font) that recite an assortment of administrative powers and obligations of the trustee, but have no provisions at all for distributing funds to anyone.

 

• Drafting a legal document properly is only a small part of the process of establishing an estate plan. Putting that document to work  - the right way – requires a significant amount of expertise and guidance that you aren’t going to get from a blank office supply form, or your faceless friend the Internet. The more property is involved, the more assistance you need. And as time passes, laws will change, as will aspects of your personal life. A professional will help you stay on top of how life and the law impact each other to ensure your plan still makes sense.

Horror stories abound about estate plans gone awry when individuals try to do their own legal work. (Google “dangers of do it yourself wills and trusts” and you’ll get almost 4 million hits.) These stories range from estate plans that didn’t accomplish everything the settlor intended, to scenarios in which the plan did everything the settlor most wanted to avoid. These are obviously the worst-case examples, but they happen to people of both significant and modest means, and the consequences can be dire in either case.

Often, the most valued benefit of a properly drafted estate plan is the most intangible one: peace of mind. Every caring person wants and needs to know that they have done everything they can to ensure that those they love will be okay if the worst happens. You can’t buy that peace of mind online for $19.99.