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End of Life Planning is More Than Creating Legal Documents-What is Missing? Part 1

Part I

Legal documents often seem overcomplicated, particularly if we view the documents as the written expression of one’s last wishes. As an attorney I have drafted Wills, Trusts and Powers of Attorneys. I have seen family conflict in my roles as a litigator and mediator resulting from stress, grief or family dysfunction. As a result, the focus of how I draft documents and advise clients and families has shifted. I was like other attorneys, the focus was mostly legal. The focus was planning for taxes, planning for benefits, planning for financial management, and planning for health care decision making. This accomplished the goals of my clients. The assets passed to the loved ones the client cared for. An agent was appointed so finances could be managed and bills paid both before and after death. An agent was appointed so health care decisions could be made without the need of a court conservatorship. An executor or trustee was appointed to administer the assets after death. The focus was on the medical, the financial and the legal. What was missing?

Missing from the estate and health/financial management plan was the acknowledgement of the attorney and the client that the documents were an expression of “last wishes”. The focus was not what happens or should happen in the end of life process, but who should be “in charge” and where does the “stuff” go. The focus was created by both the client and the attorney as we are often not able to speak directly about difficult issues such as death and dying. In drafting and signing legal documents, we must take into consideration that there are people with emotions involved, family relationships need to be considered, and important last wishes are at risk of being lost amongst the legal maze of lengthy documents. We are planning for end of life which will be a difficult time for all involved. With this in mind, we still create legal documents, but we do something more important; we focus on the important last wishes of our client and the relationships between the loved ones.

What should be considered in the drafting of legal documents and what other issues should be discussed. Those with “estate plans” will ask “If I have the right legal documents, what else do I need. I have someone appointed as an agent to make decisions for me. I have an executor or trustee named. I even have declared I do/ do not want life support.” The answer lies in the fact that end of life should be honored, and your wishes should be as well. Most are now familiar with hospice and other services to make the end of life experience less medically focused in “sterile” surroundings. There is much more needed in your plan to avoid the medical focused sterility of end of life.

Since our society focuses on the legal and medical wishes, you may not have seriously thought about other important last wishes. Did you discuss with your family, the attorney or anyone that it may be important to you to have loved ones around in your last days. Would you like to go through family photos with your children? Listen to your favorite music? Have that last fudge brownie with ice cream? Have someone take you to a place of worship or bring it to you if you are not physically able? Go to the mountains or ocean one last time to see a sunrise or sunset. Take a trip or drive a race car? Who do you want at your side in the last days? Have you told them or discussed this with them? Have you talked to them about your feeling that if for some unanticipated reason they cannot be there, they need not live with that burden? Have you……..?

Both through use of family meetings and in legal documents your most important last wishes can be considered and at the forefront of the end of life experience. It does not have to be about the medical testing and procedures. It does not have to be about legal documents. It can be about what is important to you and those you love. Make a list of what is important to you and make sure it is included as part of your end of life planning as these are “your” last wishes. If you are having a new plan prepared or an old plan changed, bring the list to your attorney. Your last wishes should be part of the plan.