Frederick Focke Mischler, Attorney

Health Care Powers of Attorney

Below is copied an old email message I sent out to some friends.  It is difficult to recall the precise emotions as I watched the Schiavo family and their tragedy rehashed ad nauseum in the media.  In the end, I hoped the public awareness of Terri's situation would inspire some of us to take steps to avoid a similar fate.  Only then can we say that Terrri's passing would not have been in vain and little more than a circus ring used by others in media and politics to push their own agenda.

-----Original Message-----
From: Frederick Mischler
Sent: Thursday, March 31, 2005 11:43 AM
Subject: Take care of yourself and your loved ones

Terri Schiavo died this morning.  It is hard to imagine anyone in the US who does not know something about this particular tragedy and the tribulations that her family and loved ones have gone through for the last 15 years. 

What has gotten lost in the discussions and analysis on news shows is that much of this public tragedy could have been prevented if Terri had made her choices clear on a simple piece of paper.

This, of course, does not diminish the anguish that a family will feel when they begin to understand that their loved one will likely not recover from a terrible event.  However, by addressing such issues at a time when everyone can discuss them to their fullest extent, we can each feel that we understand the choices to be made and can accept the choices made by those we love.  And, we can accept the awesome weight of the decisions necessary when our loved ones can’t speak for themselves.

In Ohio, Living Wills and Health Care Powers of Attorney have been available for years.  I recommend that you consult with your family and friends, and with your legal advisor to understand how these documents work and what they mean in the context of your own health care and quality of life. 

American Bar Association is committed to encouraging competent adults to take the time to complete advance care plans stipulating who should make decisions in the event they should become unable to speak for themselves, and what their basic health care preferences are.  As part of that effort, the ABA has made available a wide variety of free on-line resources designed to make it easier for people to make the necessary preparations.  Those resources, which can be found at www.ABALawInfo.com, include forms and information available to the public for download free of charge.

Further, Living wills and health care powers of attorney are typically one part of a larger estate planning process.  If you have any questions about this or have never considered your own estate plan, please contact me.  I will be glad to help you begin to understand the issues related to such planning.

            

            Best Regards,

            Frederick Mischler

Creating or Reviewing An Estate Plan

The Top Ten Reasons to Stop Delaying

10. Your money goes to unintended people.  In other words, if you allow your state law to determine who gets your stuff, the result may well be unintended and you are not around to fix the problems.  An estate plan ensures that you decided who gets what, and when they get it.  You stay in control of your stuff.

9. Uncle Sam will become your beneficiary.  If your estate is taxable, the testator may be able to pass significantly more property to heirs with proper planning and executed documents.  Taxes and probate costs can eat up a good bit of your estate.

8. Your business could go to people who can't work with each other. What will happen to the business then, after all the years you spent building it?  You know that key people who can’t or won’t work together will end up destroying your hard work.  Estate planning examines how to keep the business going with the least amount of disruption.

7. The court gets to help run your family business.  A properly composed will in most states permits the estate, including your family business, to function without court supervision over daily details of running the business.

6. Your kid(s) finances will get very complicated.  If property passes to minors, court required guardianships will be involved in disbursement decisions, accountings, etc., not to mention that the testator may not want the person most likely to be the guardian, such as an ex-spouse, to be the guardian.  Trusts can solve most or all of your problems with passing property to you’re young children.

5. Your son will be able to buy a Ferrari.  In the absence of a properly composed will (and perhaps a trust), most heirs get the inheritance at age 18.  That is when the auto dealers drool and the money is wasted away, etc.  Protect your family’s future from unscrupulous salespeople and from half-baked ideas.

4. Your kids may end up paying taxes on the life insurance collected by your sister.  If the estate is taxable, without planning here all kinds of unintended results can occur.  Life insurance can be a great protection for their future, but it can be done well or poorly.  Estate planning examines the options to ensure you get the most out of your life insurance investment.

3. Your soon-to-be-ex-son-in-law will get a big chunk of your assets.  With no will, your child most likely takes at age 18 and if the property is not in trust it is available for, to pick one example, your child's husband's scheme to have a chain of tanning salons.

2. Your neediest child gets shortchanged.  A will can permit the trustee to disburse more sensibly than with mathematical parity.  Children with special needs can be provided for at a level that ensures they too have a high quality of life.

1. Your final message to your family is “I don't care”.  Need more be said? 

0. Regardless of whether the estate is taxable, a properly drafted will means there are fewer total costs, final wishes get honored, and it all gets done more quickly than if everything is handled according to the state law on distribution of inheritances.

Fundamentals of Estate Planning

As a quick introduction to estate planning, many of you may be aware of the basic documents that comprise an estate plan.  They are 1) the last will and testament, 2) durable power of attorney for finances, 3) living will, and 4) health care power of attorney.  Ohio also has adopted another document as legal in the state, the power of attorney for mental health care.  This document is not usually included in the basic set, but I presume this is because it is a relatively new concept in the field.

The last will and testament, probably the most well known of the documents, directs your personal representative or executor to pay your debts out of your estate and distribute the remaining estate assets to your listed beneficiaries.

The durable power of attorney for finances allows the appointed person to have access to your property as listed in the power of attorney document, in order to manage your financial affairs in your absence.  The durable aspect of the document allows the appointed person to act even if you have lost the ability to act, such as being comatose or disabled with some mental disorder.  The appointed person cannot do anything that is not listed in the document, so be careful what you put in the document.

The living will is a declaration to the world that you have considered the issues surrounding disabling illness and end of life, and have made the decisions as indicated in the document.  This is usually referred to in discussions about "pulling the plug".  But in fact, the document can also be tailored to direct other actions, such as maintaining nutrition and hydration.

The health care power of attorney is very similar to the living will, in that it relates to issues surrounding disabling illness and end of life.  However, it also appoints a specific person who will make health care decisions for you when you are unable.

One type of document I did not mention above is the Trust.  This is a document which creates a separate entity that is able to own property and pay its own debts (among other characteristics).  It is not something that everyone needs, so it is not, in my view, part of the basic set of estate planning documents.  But, there are many different trusts and they each have different functions.  Many people without a trust now might find a valuable reason to have a trust.  It is an issue to explore when you consider your own estate plan.

All of these documents require a careful consideration of the issues before finally writing the words.  Estate planning is not simply a production of paper, it is a review of your life and of your goals and aspirations.  For many it can result in a fairly simple set of directives to your heirs, but it is impossible to determine that without first looking at the landscape.  I recommend to all that before you set the idea of an estate plan on the shelf or back burner, take a look at your life and ask yourself if you are confident that everything is arranged the way that is best for you and your family.  If you are not sure, then you need to spend time learning about it, and perhaps talking to a lawyer to craft a plan that is right for you.