GeriLaw | Robert Fleming, Tucson elder law attorney, and colleagues

Psychiatric Advance Directives by Thomas D. Begley, Jr.

 by Thomas D. Begley, Jr.

 

Psychiatric Advance Directives (PADs) are legal documents similar to advance directives given in connection with end-of-life decision making. However, PADs are used to give instructions with respect to preferences for future mental health care treatment. They can also be used to designate a proxy decision maker. A number of states have enacted PAD legislation.[1] In some states, such as Wisconsin, a Power of Attorney may not be used to authorize mental health treatment. 

Frequently, PADs are used to request or refuse specific treatment, such as any types of medication and other mental health interventions, use of physical and chemical restraints, release of information for treatment, participation in clinical trials of experimental treatments, hospital selection, and other directions to manage the person’s routine responsibilities.

 Advantages of Advance Directives

The advantage of a PAD is that the individual can assume control over future health care treatment decisions. They are useful in communicating preferences to family members and providers. They may also facilitate appropriate and timely treatment interventions before situations deteriorate to emergency status. Utilization of PADs may lead to a reduction in adversarial court proceedings involving involuntary psychiatric treatment. Some states do not allow agents to make decisions in regard to psychiatric care; instead, court proceedings are necessary if the treatment is not voluntary.

 Legal Capacity

There are two points in the PAD process in which legal capacity is an issue:

1,  Execution. At the time the individual drafts and signs an advance directive, the person must be competent. Most states presume that persons are competent at the time the advance directive is executed. Also, most state statutes require that the PAD be signed by two adult witnesses who attest the person’s capacity at the time the instrument is drafted.

2.  Utilization of Document. At the time the document is used for health care or psychiatric decisions, the person must be incompetent to make those decisions for him or her self. Some states require that a court make capacity determinations at the time the PAD is utilized. Other states, such as Oregon, provide that determinations may be made by either a judge or two physicians. Since one of the goals of PADs is to avoid court involvement, the Oregon approach is preferable.

 Refusal of Treatment

There is a controversial issue concerning the use of PADs to refuse all treatment. Most state laws provide that an individual may use a PAD to consent or refuse psychiatric treatment.

Override

Under what circumstances can a PAD be overridden? There have been no court decisions yet on when a PAD may be overridden, but it is likely that a PAD authorizing treatment refusal would be overridden if the individual was determined to be dangerous to him or her self or others.

 Revocation

So long as an individual is competent, he or she clearly reserves the right to revoke a PAD.  If the individual is actively symptomatic and in need of treatment, the issue becomes murky.  A court hearing may be required in individual cases.

The National Alliance for the Mentally Ill (NAMI) suggests that an “Ulysses clause” be considered. Under a Ulysses clause, an Advance Directive instructs treatment providers about specific treatment preferences, and explains that any statements made refusing treatment during periods of incapacity should be ignored.[2]

 Interest in Advance Directives

A recent study of mental health consumers in public health treatment settings (in five states) showed that only 4% to 13% have completed a PAD. However, between 66% and 77% of those consumers say that although they currently do not have a PAD, they would want to complete one if they had the necessary assistance.[3] The study showed that there were likely to be more interest in PADs when the following factors were present:

 •  Past adverse experiences with treatment pressures

 •  Social disempowerment

 •  Degree of insight into their illness and need for treatment

 •  Existence of social resources, including marriage

 Registration

New Jersey is in the process of establishing a registry where PADs can be registered. Vermont and Washington State have established registrations for all advance directives through the US Living Will Registry.[4]

 

 

Thomas D. Begley, Jr., CELA

 

Begley & Bookbinder, PC

 

ATTORNEYS AT LAW

 

COMMITTED TO EXCELLENCE

 

 

Specializing in Elder & Disability Law

 

www.begleylawyer.com

(800) 533-7227

 

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[1] Alaska, Hawaii, Idaho, Illinois, Maine, Minnesota, New Jersey, North Carolina, Oklahoma, Oregon, South Dakota, Texas and Utah.

[2] Advance Directives by Ronald S. Honberg, www.nami.org.

[3] Psychiatric Advance Directives Among Public Mental Health Consumers in Five

U.S.

Cities: Prevalence, Demand, and Correlates.

[4] www.USLivingWillRegistry.com

Elective Share and Separate Property

A recent Fairfax Circuit Court case highlights the need for premarital or marital agreements for blended families.  In Higham v. Williams (CL2006-11954, March 28, 2008), the husband and wife maintained separate property throughout their marriage.  The wife died, and the husband filed an elective share claim against her estate.  The wife’s estate claimed that the parties maintained separate property so that they could leave their property to their respective children from previous marriages.

The husband and wife did not have a premarital or marital agreement that would prevent either party from electing a marital share of the other spouses’ property.  The husband asserted that the court could not deny his elective share claims in the absence of such an agreement.  The court  agreed with the husband’s position, and held that it could not impose a premarital or marital agreement on the parties that waives the right of each spouse to claim against the estate of the other spouse, when the spouses did not make such an agreement themselves.  The court could not impose such an agreement even though there may be concerns of fairness to the wife’s two children and one grandson.  The court also considered which of the wife’s assets should be included in the augmented estate, and which assets should be excluded.

Andrew Hook
Oast & Hook
www.oasthook.com

SOCIAL SECURITY EARLY RETIREMENT DECISION CAN BE REVERSED

The attorneys at Oast & Hook are often asked, “When should I start claiming my Social Security benefits?”  Many baby boomers are facing the trade-off of claiming Social Security benefits early and receiving a lower benefit, or waiting until full retirement age or later and receiving a significantly higher benefit.  A recent article in USA Today highlights this trade-off, and discusses a little-known option that allows retirees to have the best of both worlds.

Those who claim their Social Security benefits at age 62 can retire at an earlier age, but they will receive a reduced benefit that may be insufficient later in life.  Waiting until full retirement age (age 66 for baby boomers who turn 62 this year) will result in increased monthly payments, but many boomers will therefore have to work longer.  This can be a problem for workers who dislike their jobs or want to spend more time with their families.

Most retirees don’t realize that if they claim early retirement benefits, they can later change their minds.  Mary Jane Yarrington, senior policy analyst for the National Committee to Preserve Social Security and Medicare, states that those who receive early retirement Social Security benefits can withdraw their applications, repay the benefits they have received, and file for benefits again at a later date.  This strategy will work if the retiree has saved enough money to repay the benefits, and the retiree will not have to pay interest on the benefits received.  Retirees electing this strategy could fare better than if they continued to receive the reduced benefits. 

In one example, a 70-year old retiree claimed early retirement benefits and receives $11,556 per year.  If this retiree had waited to file at age 70, then she would have received $20,000 per year.  If she wanted to withdraw her application and reapplied for benefits at age 70, then she would have to repay $79,305 (interest-free), but she would raise her standard of living by 14%.  In this example, this strategy would provide the retiree the equivalent of an inflation-indexed annuity.  This strategy is well-suited for people who took early retirement, are unhappy with that decision, and want to increase their benefits.

The strategy is not without risks.  There is a chance that the government could change the rules and eliminate the option to reapply.  Claiming early retirement benefits could also put the spouse at risk.  If the higher-earning spouse takes early retirement benefits and dies before withdrawing and reapplying, then the surviving spouse would receive reduced survivor’s benefits for the rest of his or her life.  If the higher earning retiree dies soon after repaying the benefits, then he or she would not recoup their investment; however, the surviving spouse would receive the higher survivor’s benefit.

Retirees interested in repaying and reapplying for benefits, can visit their local Social Security Administration office, or phone 800-772-1213 and make an appointment.  They will need to fill out Form 521, available at the Social Security Administration’s website, www.ssa.gov.  If the retiree’s spouse is receiving benefits based on the retiree’s earnings record, then the retiree must obtain the spouse’s consent before the application can be approved.

Andrew Hook
Oast & Hook
www.oasthook.com

R.I.P. Wyatt E.T. Fleming

Wyatt Earp, a Welsh Corgi, was nine when he first came to work at Fleming & Curti. He was a rescue dog of sorts -- his owner had gone into the nursing home, and we had represented the owner's daughter when she had to establish a guardianship, and when she asked what she was going to do with Wyatt ... well, you can correctly guess the rest of the story.

Wyatt died Monday, May 5, 2008, at the age of 13. He will be missed by many; clients, colleagues, neighbors among them. He even had a modest following among the national elder law community.

Immediately after joining our family Wyatt started going to work daily. He might have been dozing outside my office door, but he was constantly attuned to the sound of the front-office door. He quickly decided that his job was to trundle out to the reception room to greet new arrivals, most of whom reinforced his behavior by fawning over him. There was something about the conference room that particularly fascinated him; if anyone headed down the hallway toward the conference room, he padded along with them, curled up in a corner of the room and napped semi-attentively through the meeting. He never asked to be excused, never interrupted the proceedings, mostly blended with the furniture. We joked about billing him out at a mere $50/hour because he was so quiet. But he insisted on attending every meeting.

One memorable client visit drove home the value of having Wyatt on staff. A school counselor came to see us about her estate plan, and she was (as clients sometimes are) illogically nervous about talking about her own death. She sat on the edge of the office chair, talking a mile a minute, kneading Wyatt's ears aggressively. "I know why you have him in here," she said from between clenched teeth. "It's to relax me. And it's working." It probably was, but that only made me nervous about how tightly-wound she would have been without Wyatt's presence. Wyatt, incidentally, loved that client; he could handle an aggressive ear-scratching for hours (Corgis do have a lot of ear to work over).

About two years after his arrival Wyatt became disabled. He had, as we learned, been suffering from degenerative myelopathy, a neurological condition that slowly deprived him of the use of first his hind legs and ultimately even his front legs. We had him outfitted with a sort of wheelchair, and he became a notable fixture on the sidewalks in and around our office and home. Every morning and evening he would walk past the coffee shop next door; the regulars may not have known my name or the names of the patrons at the next table, but they all knew Wyatt, and many of them would have a treat to offer him. He invariably, and graciously, accepted.

In the last six months Wyatt's condition deteriorated to the point that he couldn't even use his wheelchair. Nonetheless he insisted on going to work with me every day. Even on holidays I often loaded Wyatt into the car, drove to the office, put him on the rug next to my desk, checked my e-mail, and then brightly announced that it was time to go home, that his workday was over. Somehow even the ten-minute workday made him feel like he had done enough to earn his pay, I guess.

Wyatt was an extremely gentle canine soul. He barked (his vocal cords had been cut as a puppy, years before I met him), but mostly only to let other dogs know that they needed to understand he was still in charge even though immobile. He and I bonded on some extraordinary level -- Wyatt was only the second dog I have ever had, and Freckles, the first one, died in 1969. He will be missed by many, all right, but mostly by me. His advancing disabilities meant that his formal duties had already largely passed to Andy and Chalupa, but I think even they will miss his regular suggestions about how they might better perform those duties.

Goodbye, Wyatt Earp Tomlinson Fleming. I miss you, buddy.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

STRUCTURED SETTLEMENTS IN CASING by Thomas D. Begley, Jr.

                It is possible to use a structured settlement in cases not involving physical injuries.  In those cases, the assignment is a non-qualified assignment that does not take advantage of the tax benefits of I.R.C. §130.  There are three companies, BARCO, NABCO, and PRUCO, each incorporated in

Barbados

that will serve as non-qualified assignees. 

                                •              Types of Cases.  Typical cases that might be appropriate for non-qualified assignments include the following:

                                                ◦              punitive damages;

                                                ◦              legal malpractice;

                                                ◦              construction defect;

                                                ◦              contract dispute;

                                                ◦              environmental;

                                                ◦              lottery annuity obligations;

                                                ◦              employment discrimination;

                                                ◦              non-wage related;

                                                ◦              attorney’s fees (including stand alone).[1]

                                •              Matrimonial Settlements.  Non-qualified assignments may be appropriate in a matrimonial settlement.  The structured settlement ensures that the spouse receiving alimony or payment of equitable distribution on a periodic basis or the child receiving child support will receive those payments on time, thereby reducing the cost of new court proceedings to resolve issues that may arise.  In cases involving a disabled party, a rated age may be used so that a higher monthly payment can be achieved with a smaller lump sum payment.

                                                The obligations of child support, equitable distribution or alimony can be transferred to BARCO, NABCO, and PRUCO, which then purchase annuities.  BARCO purchases annuities from Liberty Life Assurance Company of

Boston

, NABCO purchases from Allstate Life Insurance Company or Allstate Life Insurance Company of

New York

, and PRUCO purchases annuities from Prudential Insurance Company of

America

.  In the case of NABCO or PRUCO, if there is a Guarantee Letter issued by a U.S. company to the effect that if the non-qualified assignee fails in its obligations, all parties are protected independent of the annuity contract.[2]

Thomas D. Begley, Jr., CELA

Begley & Bookbinder, PC

ATTORNEYS AT LAW

COMMITTED TO EXCELLENCE

Specializing in Elder & Disability Law

     www.begleylawyer.com

(800) 533-7227

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[1] www.ringlerassociates.com

[2] Structured Settlements 4Real: What’s Real on Structured Settlements and Settlement Planning?, Aug. 1, 2006, http://structuredsettlements.typedpad.com.