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Avoiding the Terri Schaivo Case – The Oklahoma Advance Directive

???????????????????????????????????????????????One of the most prominent cases of Living Wills or Advance Directives was the Terri Schaivo case in the early 2000s. It is prominent for Living Wills, in that Terri Schaivo did not have one, and her situation caused a legal battle that lasted years and costed thousands of dollars for her family.

In this case, there was a emotional and nationally-known legal battle in Florida over whether a woman, Terri Schaivo, would be kept alive through treatment of artificial food and water, or would pass away from the disuse of the treatment.  If you remember, her husband, who was still legally married to her but estranged from her family, wanted her to pass away, but her family wanted her to remain alive through the artificial means.  Since Terri Schaivo did not have a Living Will that told her family and husband what her wishes were, her family and spouse went through ten years of litigation, one-hundred thousand ($100,000) of dollars in legal fees, and endless pain and frustration for everyone involved.  A Florida court ultimately decided Ms. Schaivo should be allowed to pass away.

Terri Schaivo and her family could have avoided the entire situation if she had a Living Will or Advance Directive in place. Our attorney highly recommends this document since it takes the heart-breaking and agonizing decision away from your family members, and allows you to get your end-of-life wishes. In Oklahoma, there are three situations that the state allows you  to make your end-of-life wishes known. See our previous post about those specific situations here. This document is inexpensive, easy to execute, and could save you and your family money, emotional stress, and it grants you all peace of mind.

If you already have a Living Will in place, see if you need to update it by reading a previous post here.

Call the office of The Skillern Law Firm, PLLC today to schedule a meeting to discuss this document as well as other your other estate planning needs today!

Why Online Wills Can be Harmful to Your Estate Planning

In September of 2010, a non-lawyer wrote an article about her experience trying out four different will-making computer programs. This article appeared in the New York Times. After she got all four different wills drafted, she took the wills to an established estate planning lawyer in New York City, and had them reviewed. The results were poor, to say the least. The lawyer found that one of the Wills was so defective that it did not even identify which heirs got which of the author’s assets. Each of the other three wills had different problems, including problems that could harm the probate process.  The attorney stated,  “The thing that most surprised me is how different your will comes out depending on what program you pick.” Some of the more common problems with the online-made wills include:

Problems with Coordinating Probate and Non-Probate Assets.
Most people have property that your Will does not cover since it passes outside of probate. For example, many couples own a house in joint tenancy, that the house will pass to the surviving owners, and not to the beneficiaries named in your Will. While you can name contingent beneficiaries in the will, it’s not understanding which property passes through probate and which does not that can derail your estate plan.
Trouble Naming Contingent Beneficiaries.
If one or more of the beneficiaries you name in your Will passes away before you, and you haven’t named an alternate beneficiary to take that person’s place, then your property passes to your heirs-at-law. If you’re not a lawyer, chances are you don’t know who your heirs-at-law are, and you probably do not want your property going to them. A Will that does not name contingent beneficiaries may have the result of taking your property away from your control, and giving that control to the state through the state’s intestacy statutes. Most online websites forget or do not have a contingent beneficiary estate plan as part of their package, and this can cause all sorts of problems for people with relatively simple life situations. If your family’s situation is more complex than normal, say you are a blended family or you have complex estate, than contingent beneficiaries and similar provisions can make your estate planning problems even worse. Qualified estate planning attorneys know these problems and can work with you to figure out what is the best plan for your estate planning needs. An experienced attorney can adapt, and should will know what the appropriate questions to ask for your situation, and no computer estate planning model can do that.
Inability to Create Trusts for Minors.
When a person leaves anything to a minor, that minor cannot take legal control of the money or property he or she inherited or benefits from. An experienced estate planning attorney would put a clause that would put any of these assets in to a trust, with a named trustee, to manage the money or assets left to the minor until the child turns eighteen (18).  If your will has no minor’s trust clause, and your estate plan leaves money directly to a minor, then a person would have to start a court proceeding to appoint a guardian or conservator. Guardianships are expensive court proceedings, and having a clause in the will can avoid these complications and expense you did not expect.
If you are needing to get any estate planning done, please consult an attorney. The online wills and trusts market are booming, but that does not mean it is the best choice for your planning. Do you really want to save money when it comes to providing a future for your spouse, children, or grandchildren? Call the attorneys of Skillern Law today.

Do You Need to Update Your Advance Directive (Living Will)?

Many clients of the attorneys at Skillern Law Firm, PLLC believe they do not need a new Advance Directive since they had one drafted many years ago. Well, if you got your living will completed before 2006, you may need yours updated.

During the 2006 Legislative Session, the Oklahoma Legislature amended the Oklahoma Advance Directive Act (“the Act”) in response to an Attorney General Opinion.  It became effective on May 17, 2006.The Attorney General’s opinion argued that, in its then old form, the Oklahoma Advance Directive Act was unconstitutional.  Before May of 2006, individuals could only designate refusal of life-sustaining treatment only if they were persistently unconscious (in a vegetative state) or if they were diagnosed with a terminal condition. The old act had no provision to allow people to choose if they want treatment or not if they were diagnosed with an “End-stage Condition.”

The Oklahoma Legislature listened to the Attorney General, and added this category to the statute. Now, individuals can discuss what they would want in an “End-Stage Condition.” An “End-stage Condition” is a condition caused by injury, disease, or illness, which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.  Importantly, this includes Alzheimer’s disease in its late stages.

At the Skillern Law Firm, our updated Advance Directives forms allow you and your spouse to refuse life-sustaining treatment and/or artificial administration of nutrition and hydration, if you so choose. It will allow allow you to designate that you absolutely want all the treatment you can receive.  Whether you choose to refuse life-sustaining treatment or to continue all treatment options, executing a new advance directive should be on your priority list.

If you have not updated your Advance Directive, or have never had one drafted with your desires, contact the offices of Skillern Law Firm, PLLC today. For more reading on what an Advance Directive can do you for, please read a past post all about living wills here.

Your life is not static, so why is your estate plan?

It is important to periodically review your will and estate plan. Life changes often require that you reassess your estate plan.

Children

Most parents are concerned about how their children will be cared for in the event that one or both parents suffer an accident or are incapacitated. It is important to name a guardian for your minor children in your will. Also, parents should consider a trust if they wish to stagger financial inheritance distributions for their children, instead of having the kids receive the whole of the estate at the age of majority.

Divorce

In Oklahoma, a divorce makes any trust that you had with a former spouse void. You should also consider any power of attorney documents or health power of attorney documents so that the contents reflect your current intent.

Remarriage

You may consider signing a ante-nuptial agreement in the event of a remarriage so as to legally separate your estates during marriage. A trust may be helpful in addressing any inheritance issues to children that a second marriage can create.

Middle Age

As people age, their assets tend to increase. Make sure that your money is working for you by talking to a financial planner. In addition, you should make sure that any assets that you acquire are included in any will or trust that you have already created.

Death of Spouse

When a spouse dies, you probably will need to get new health care and financial power of attorney documents.

 

The offices of Skillern Law can assist you in making changes to any and all of your estate planning needs. Call our office today!

Living Wills- The Questions to Think About

Today on Tulsa Estate Planning Blog, we will discuss what a living will is, and what medical scenarios it will cover. Let’s get started.

A living will is a legal document which allows a person to make known his/her wishes regarding life-prolonging medical treatments. Living wills are also referred to as advance directives, health care directives, or a physician’s directives. A living will is not a living trust, which is a trust for holding and distributing a person’s assets to avoid probate. It is very important to include a living will in your estate planning documents since it informs your health care providers, as well as your family, of your desires for medical treatment in the event you are not able to make those decisions yourself – like if you were in a coma. Living wills and other advance directives are not only for older adults. Unexpected end-of-life situations can and do occur at any age, so it’s important for all adults to get estate planning, including an advance directive, completed.

Sometimes, clients are surprised on the amount of situations that are included in a living will. A lot of the the questions take some thought and personal reflection to decide on what you would want to happen in the specific given situation. Skillern Law Firm’s living will covers three situations as well as other end-life options.

The first situation that you need to consider is situations where the physician has given you a diagnosis of an terminal, incurable and irreversible condition that will result in death within six (6) months, even when administered life-sustaining treatment. These include fatal cancers, tumors, or any other disease or scenario where you are giving a very short time to live. Your brain can be fully functional, but your body could be in a very poor condition. After considering this question, you would have to choose whether you would want (1) both life-sustaining treatment and artificiality administered food or water, (2) neither treatment nor artificially given food or water (3) only artificially given food and water, but no treatment. You are also allowed to provide your own specific instructions.

The second situation is when you are in a persistently unconscious state that is irreversible, and where the physicians believe you to be unaware and brain dead. So, essentially, you are in a persistent vegetative state. The same three options are applicable to this situation as well.

The third situation is when you are in an end-stage condition which could have been caused by injury, disease, or illness, and the condition results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective. In this situation, your body is so deteriorated in condition that you cannot stand, feed, or do anything for yourself. The three same situations are above. Your mind may be functional here, but your body is not.

These are tough situations, and that is why a living will is so essential. Will your wife, brother, or parents be able to handle one of these scenarios rationally, or do they even know what would be your wishes in these situations? Most people would say no. Living wills really help make sure that you are guaranteed your desired medical treatments in these situations.

Skillern Law Firm, PLLC living wills also include an area where you are able to choose if you will be an organ donor, what organs or body parts you want to donate, and for which purpose you would want to donate for (surgery, transplant, science, etc). If you need a living will done today (which you probably do!), contact Skillern Law Firm now!

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