Review of guide for gay and lesbian couples

My book review of Nolo publisher's "A Legal Guide for Lesbian and Gay Couples" appears in the December 2010 issue of Wisconsin Lawyer. In summary, the guide gives some basic information for couples or attorneys, but sometimes the information is a bit outdated or better available elsewhere, like specialized online sources. Because the guide is written for a lay reader, it is probably not very useful for attorneys (who are the reading audience of my review) unless it is used as a very basic starting point for understanding issues for lesbian and gay couples.

More on financial powers of attorney

As of September 1, 2010, Wisconsin has an all-new financial power of attorney law--new statutes and new state form. I introduced the new legislative act shortly after it became effective, and I will include more detailed posts about various aspects of the law.

For an extensive explanation, see this article in the June 2010 Wisconsin Lawyer magazine (the Wisconsin state bar's official publication). I wrote the article's sidebar about the new law's state form.

Powers of attorney must be on people's minds lately. See this "ask the expert" column from the New York Times' blog about aging. Although the answer to the question may be correct in some states, it is not entirely correct under Wisconsin's new law. In Wisconsin, coagents can act independently unless the power of attorney specifies otherwise. As in most cases, legal questions have many nuances and an inquiry with an attorney in the relevant state is very helpful.

Wisconsin's new Power of Attorney Act

As of September 1, 2010, Wisconsin has a new financial power of attorney act. Of course, you should be excited, at least if you are a certain segment of the legal profession in the state. After only a week, it seems that the new law will have attorneys advising clients and preparing documents differently. Articles, list serv discussions, and actual work for clients have us thinking through the range of possibilities.

Because the new law is so extensive, I will break up my comments on it into several topics. For now, I will simply link to the new chapter in the Wisconsin Statutes. (Just for comparison, the new law has an entire chapter in the statutes, where the predecessor statute was only a couple sections amounting to just a few pages.)

Even the best-laid plans...

can go awry. Sometime we call this "law in action"--when the legally correct thing is ignored, and the person in front of you says something else is required or expected. Case in point, the instances where same-sex partners were denied visitation access to their ill partners in hospitals. The New York Times reported on two such couples, where the access-seeking partner had a valid health care power of attorney, but was turned away anyway.

[One] case, now the subject of a federal lawsuit in Florida, is being watched by gay rights groups, which say same-sex partners often report being excluded from a patient’s room because they aren’t “real” family members.

And lawyers say the case could affect the way hospitals treat all patients with nonmarital relationships, including older people who choose not to marry, unmarried heterosexual couples and single people who rely on the support of close friends rather than relatives.

One point of contention in the lawsuit is whether a hospital has a legal duty to its patients to always give visiting rights to their designated family members and surrogates.

Stay turned for an interesting, evolving area of healthcare, family, and patient-rights law.

Prominent New York case draws attention to financial abuse of the elderly

Financial exploitation of the elderly is a problem that has received growing attention in recent years. A recent post to the excellent New York Times blog, "The New Old Age," considered how elusive detection of such abuse is, in light of the pending case in New York regarding the estate of Brooke Astor, her son, and the son's attorney.

According to the piece, "[m]ost cases involving suspected financial exploitation of the elderly . . . are never prosecuted and probably never discovered." Here are a few reasons why:

1. The elderly person may be isolated from others who would be in a position to detect abuse. Isolation may be from poor health and mobility, shrinking social circle, or imposed by the abuser.


2. Defining financial abuse can be elusive. Some action may indeed be abusive, but others may be well-intended, but just done in poor judgement. The Times post notes that, "[t]rying to specify exactly what behavior constitutes elder abuse . . . remains a shadowy, insufficiently investigated subject."

3. Abusers can be family members, so then the abuse is often unreported because of the closed circle of those involved. A study cited in the post found "that the most likely perpetrators are family members, friends and caregivers, who feel entitled to take funds because of their established relationship."

4. In our legal system, recourse is often expensive and may take a long time. If the funds stolen are not significant (say, over $10,000), it may be cost-prohibitive to litigate under civil law or persuade the district attorney to prosecute under criminal law. Further complicating matters, with an elderly victim, they may not wish to give testimony (or be mentally competent to), or they may have died before a case can be resolved.

Fortunately, many states, including Wisconsin, have recently enacted tougher statutes against financial exploitation of elderly or other at-risk adults. In addition, agencies and task forces have been formed or empowered to address abuse.

Whether through government, non-profit entitities, or personal vigilence, the awareness and prevention of elder abuse (of all types) is improving, but requires involvement on everyone's part.

As the Times post ends with a quotation from the president of NAELA (National Acadamy of Elder Law Attorneys): "A sensational case like this, or the Terry Schiavo case, hits the hot button and helps make people aware that there could be a problem and that they should protect themselves."

Keep talking about advance directives until everyone has them

Facing a loved one's serious medical condition or end of life is always agonizing. But it approaches being unbearable when there is no way of knowing what the person would want for treatment or care.

Advance health care directives are SO IMPORTANT and can spare families a world of grief. Advance directives and why people tend to avoid them is the topic of a recent post on the New York Times' blog, "The New Old Age."

In light of the recent National Healthcare Decisions Day (April 16), consider this excerpt:

One reason is that advance directives may be misperceived, theorized Nathan Kottkamp, a health care attorney in Richmond, Va., and organizer of this month’s National Healthcare Decisions Day. People may equate such documents with limiting care, with “pulling the plug.” In fact, Mr. Kottkamp said, “Your living will can say you want every medical treatment known to science applied to you at the end of life. Or no treatment. Or anywhere on that spectrum.”

Elder mediation as an option for resolving disputes

Morning Edition on National Public Radio ran this story about turning to a mediator when adult children and elderly parents have a dispute about the parent's affairs.

In one example, the mediator said, "[The father] simply didn't want any of his kids to know how much money he had and how his finances were organized."

But as the report continued, " [T]hings were getting worse. One son insisted on going to court to get his father declared mentally incompetent, so the family could take control of the father's finances."

The story goes on to decribe the benefits of involving an outside, neutral party to mediate the matter. The downside may be that there are no national standards for mediating, so the family needs to carefully interview the potential mediator for qualifications. One option for finding a mediator is Eldercare Mediators (I have no basis to vouch for the quality of the organization beyond the reference in the NPR story.)

Perhaps this type of scenario is another opportunity for collaborative law.

New link--Wills, Trusts & Estates Prof Blog

If you are looking for daily news from the mass media and legal sources on all things related to estates and probate, check out the blog by Texas Tech University School of Law professor, Gerry W. Beyer, called Wills, Trusts & Estates Prof Blog.

Most days, Professor Beyer has multiple posts with news from around the country. Some of the news is interesting to any reader (like Anna Nicole Smith's estate--see, now you're interested!). Some posts are decidedly for estate and probate wonks like attorneys and law students, but read a few posts and even the most legally intricate items can hook you in.

For future reference, I've added a link to the professor's blog to my list at the right side of Live a Beautiful Story.

Reasons for paying attention to the healthcare system

If you don't have your own personal reasons for considering the immediate and long-term concerns of the American healthcare system, consider these from an interview in the New York Times. A notable and accomplished physician discusses the current medical culture, the President's proposals for change, and aspects of our healthcare that all of us should think about. A prominent topic of the interview is the discussion of advance directives for medical treatment at the end of life.

If you missed the Dallas Morning News series on end of life issues, check out my post on it here.

(Photo by Erica Marshall; used by permission.)

End of life series from the Dallas Morning News

The Dallas Morning News ran an excellent five-part series on end of life decisions and difficulties. The "Edge of Life" series follows a palliative care team at Baylor University Medical Center. Nurse Min Patel and several of her patients discuss, prepare for, and address the family, health, and spiritual dimensions of dealing with death in the face of modern medical technology.

My nut-shell summary:
Old way: "Aversion to their own mortality was at the core of doctors' inhibitions in helping patients at the end of life . . . . It made physicians hide behind stiff white coats, rush from room to room, and turn clinical and cold when they couldn't fix or rescue."

New way: Palliative care professionals address all relevant issues head-on. "[They] can't fix everything, but [the patients] don't have to go it alone." The outcomes are better for all those involved when they realize "that using more drugs and devices wasn't always the best way to show love."

The stories in this series are so touching it makes you wish all death and grieving could be as good as this featured approach aspires to.

Also, check out my previous post on hospice care.

(Photo by blueskygirl; used by permission.)

Taking care of yourself, part one

I include entries about personal health and healthcare because so many aspects of our lives are affected by our health--our family lives, our professional lives, and our sense of well-being and self-worth. In the legal arena, health issues affects our finances (possibly causing bankruptcy), our families (like assisted reproduction), and our estates (linking finances and families, such as special needs trusts or powers of attorney).

The New York Times runs excellent articles on health topics, including this recent essay on how we define our health, and this article on using the internet to find abundant health information. The second article includes lists of websites with medical information on general health, diseases, and research.

Also, in terms of estate planning, we often limit our thinking to what happens to our stuff after we die, but we need to remember to give some directions for when we are still living, but may not be able to express our wishes directly. Enter advance directives, the most important of which is the health care power of attorney. Wisconsin has a state form for health care power of attorney, by which an individual age 18 or older may designate someone (the health care "agent") to make decisions on the individual's behalf when the individual is incapacitated (as defined by state law in the document).

But don't stop with just filling out a form. A health care power of attorney is only as meaningful as the conversations you've had with your designated agent. You want your agent to make decisions as you would. So, discuss your wishes and philosophy of medical care with your agent, family, and friends. Even if it is difficult to talk about serious injury or illness that would require your agent to act on your behalf, consider how much harder it would be for your loved ones to try to guess what your wishes would be and who you would want to speak for you.

(Photo by Lee Maguire, used by permission.)

"We're not letting autism back us into a corner."

In spite of the challenges and frequent (but thankfully, lessening) public misunderstanding or disapproval of associated behavior, families are traveling with their children with autism spectrum disorders. A combination of family coping skills, growing societal awareness, and special travel accomodations creates greater opportunities for the kinds of family vacations that many of us take for granted.

"[W]ith Americans who have disabilities spending $13.6 billion annually on travel in the United States (not including the caregivers and family members who often accompany such individuals) . . . , a small but growing number of tour operators, travel agents and resorts are offering specially geared getaways."

In another story, a family explains how their advanced planning helps a college-bound son with Asperger's syndrome and mental illness. This young man shows great promise in math and science, and his family arrangements give him the extra support he needs to succeed. These stories illustrate how broad inclusion of those with autism spectrum disorder can enhance the lives of those individuals AND the rest of society.

Attorney Barbara S. Hughes, one of the law partners I work with, has created an education power of attorney to assist young adults with disabilities continue to include their parents in their educational decision-making. Here is a short article describing how she developed it, and what it entails. Without such a power of attorney, parents could be excluded from student records or other confidential information and processes after a student reaches the age of majority. An education power of attorney, in similar fashion to a financial power of attorney, adds parental involvement without taking away any of the student's rights or authority.

(Photo by Baston, used by permission.)