April 2024

From The Certified Elder Law

Attorney's Desk:

William W. “Bill” Erhart

Advanced Health Care:

Will your advance care planning honor your wishes?

Two items published in February impressed us. One on the fragility of life and the effect of decisions we make. Second, we make decisions before we know the facts. The second is changing.

A recent article in the New England Journal of Medicine reported the results of a twenty-year study in China. The participants were from 45 to 65 years old with no prior cognitive deficits. They were recruited for a long-term study. One purpose was to attempt to correlate biomarkers of Alzheimer’s disease from those cognitively normal among the Chinese.

The subgroup selected for the study underwent testing of spinal fluid, cognitive assessments and brain imaging at two-to-three-year intervals. Eventually, 648 participants who developed Alzheimer’s disease were matched with 648 participants with normal cognition. The trajectories of the biomarkers, cognitive testing and imaging were analyzed in the two groups.

Conclusion, in lay terms, the biomarkers indicated who developed Alzheimer’s and who remained cognitively normal. These biomarkers had been noted in other studies not including the Chinese.

Noted in the study were that samples taken twenty years ago were able to be preserved and more modern techniques for biomarkers were able to be used to test them. This brings some uniformity to the testing techniques.

Some time in the future we will be able to test ourselves to determine our proclivity for Alzheimer’s. This is true of other diseases as well.

The Oklahoma Supreme Court rendered a decision on a right to die case involving an advance health care directive. The Oklahoma Health Care Law is a little different then Delaware law. The ultimate decision might be different. But that does not change the story.

In re the Guardianship L.A.C., whom we will call LAC hereafter, the Oklahoma Supreme Court reversed the Oklahoma Court of Appeals, which hard reversed the Oklahoma trial court. LAC began to suffer from progressive degenerative diseases in 2011. LAC’s daughter filed for guardianship in December 2011. LAC did not like that and opposed the daughter’s petition, which was dismissed. LAC then executed both powers of attorney for healthcare and property, naming LAC’s sister as agent, not her daughter or her son in 2013.

In the 2013 healthcare directive, LAC specifically directed that “my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. …” In March 2018 she lost her ability to speak. On May 12, 2021, the daughter filed for an emergency guardianship when LAC was hospitalized for aspiration pneumonia. The Court granted the emergency guardianship and the daughter authorized the insertion of a percutaneous endoscopic gastronomy (“PEG”) tube to hydrate and feed LAC contrary to the terms of the advance directive.

The sister objected to the guardianship as she was named the agent under the powers of attorney. The court then named an independent party as Guardian Ad Litem (“GAL”), suspended the advance directive and ordered that the PEG tube remain in place until the matter could be resolved. On September 22, 2021 an agreement was reached and the court appointed an independent General Guardian, who like the Guardian Ad Litem, was an attorney.

In the four-month span that the GAL was in place, the GAL issued two reports to the court, both indicating that LAC wanted the PEG tube removed. Daughter then filed her third attempt to become guardian of LAC. She asserted that the PEG tube she requested be inserted, be removed. The son objected to his sister’s attempt to become guardian, but agreed the PEG tube should be removed. The sister, who as agent under the powers of attorney was tasked with enforcing LAC’s wishes, oddly objected to the removal of the PEG tube notwithstanding the specific direction of LAC’s directive to never insert one.

The trial on whether to remove the PEG tube began on April 13, 2022, eleven months after the second guardianship petition was filed. And nine years after LAC signed legal documents stating she did not want a guardianship and did not want a PEG tube. The GAL issued a third report.

At the trial, the GAL testified that she, LAC’s attorney and the court appointed Guardian visited LAC to determine what was LAC’s view. Although no detail is presented regarding the mode of communication after some time it was apparent to the three attorneys that LAC wanted the PEG tube removed. While taking a break, a hospice nurse mentioned that removal of the PEG tube would cause LAC pain as she starved to death. After discussing this with LAC, the three attorneys felt that LAC then did not want the PEG removed.

Of course, the physician for LAC, and the hospice nurse testified at trial that medication would ease any discomfort that LAC might feel if the PEG tube was removed. One gets the feeling that three attorneys meeting and struggling to understand LAC and the medicine is reminiscent of a comedy of errors but for the sober reality.

The trial court ruled there was a lack of proof that LAC had revoked the directive not to have a PEG tube inserted and ordered it be removed. The Court of Appeals applied a different standard and held LAC had revoked the directive. The Oklahoma Supreme Court decided that in Oklahoma, the standard of proof for revocation of a health care directive is clear and convincing evidence. Although basing its decision on Oklahoma statutes, the Court noted consistency with the United States Supreme Court decision in Cruzan v. Dir. Missouri Dept. of Health, 497 U.S. 261 (1990) at 282, that a state could require clear and convincing evidence of a health care decision by an individual since the interest at stake is more important and substantial than mere loss of money.

The Oklahoma Supreme Court decision was issued on February 6, 2024. This is almost three years after LAC was hospitalized and then institutionalized in a facility. It was more than ten years after LAC had decided how she wanted to be treated if she needed artificial hydration and nourishment.

Like all court opinions, there are unanswered questions. Did not the sister of LAC as agent know LAC’s wishes? Did not the children? Why did the daughter request the PEG tube be inserted and then request it be removed? How could the three attorneys attempting to discern LAC’s wishes be so misled by a casual statement of a nurse.

The lesson of LAC?

It is difficult to predict years in the future how one will feel about medical decisions when one must live with it in real time. That one cannot predict whether one’s health care agent will honor your wishes. Over time circumstances and your agents change. Perhaps LAC’s sister in 2013 was not the same person in 2022.

Was there an attempt to bring the family into harmony prior to 2021?

Why was not a POLST executed before 2021?

POLST is a part of advance care planning which helps individuals make careful, medical decisions which will be binding on all, including health care providers. POLST goes by different names in different states. In Delaware it is called DMOST. The concept is the same in all states. When one is seriously ill or has less than a year to live, the patient and the physician discuss and decide what medical treatment you want. You sign it and the physician signs it. It then becomes a medical order that is to be honored by all. Oklahoma has had a POLST since August 26, 2016.

A POLST is effective when it is signed. Unlike an advance directive which becomes effective when one cannot communicate for oneself.

Medical science is making it possible for us to know what diseases we will likely incur. The law is granting us the ability to make binding choices in advance.

Will we make them wisely?

Jia, J., M.D., Ph.D. (2024). Biomarker Changes during 20 Years Preceding Alzheimer's Disease. The New England Journal of Medicine. February 22
IN RE: GUARDIANSHIP OF L.A.C., 2024 OK , 0 P.3d 30

Can My Lifetime Fiduciary Pay My Final Bills?

Friday, April 5th, 2024 by Catherine Read

A fiduciary is someone who acts for another pursuant to legal authority to do so.

A fiduciary can act for a living individual. The most common sources of legal authority for a fiduciary to act for a living individual are: a power of attorney, a guardianship, and a trust.

But when that living individual dies, the fiduciary’s legal authority dies, too. At that point, a new source of legal authority – whether an estate or trust – dictates who the fiduciary is, what his/her duties are, and to whom he/she owes the duties.

Many don’t understand this. A child serving as agent under a financial power of attorney might believe his/her authority continues after his/her parent’s death to pay final bills. A guardian might believe the same thing. Not so.

A recent opinion from the Court of Chancery of the State of Delaware explains this distinction in the guardianship context and is discussed below. We also show below how the same principles apply to financial powers of attorney and how revocable living trusts provide a built-in solution for the “death” dividing line providing for easier post-mortem administration.

1.Guardianship.

In In the Matter of P.M., C.M. # 19860-K (Del. Ch. January 31, 2024), the Delaware Chancery Court confirmed existing law that a guardian cannot use guardianship funds to pay the final expenses of the person with a disability who was subject to the guardianship. While this result might surprise some, it is the result of the interplay of Delaware’s guardianship and estate statutes and the sources of each type of fiduciary’s authority to act.

In this matter, co-guardians of the person and property of P.M. filed a petition, after P.M.’s death, to expend guardianship funds to pay for P.M.’s burial expenses, the family luncheon after P.M.’s burial, and a wheelchair pad replacement purchased for P.M. Magistrate in Chancery Selena E. Molina denied the petition, explaining that as recognized by Chancellor Seitz in In re Bohnstedt, 125 A.2d 580, 582 (Del. Ch. 1956), “a guardian appointed by this Court derives their power to act from the living person with a disability; thus, after the death of the [person with a disability] the [guardian], absent statutory authority, has no power to pay existing obligations. The creditors must file their claims in the estate proceedings.” (internal quotations omitted). Id. at 2.

The Court explained that, as recognized most recently by Vice Chancellor Zurn in In re A.N., 2020 WL 7040079, at *11 (Del. Ch. Nov. 30, 2020), “Delaware’s statutory scheme provides no such post-death, pre-estate power for guardians to pay the person with a disability’s unpaid debts and liabilities; the guardian’s responsibilities after death and before termination of the guardianship action are limited to (1) being candid with and responsive to the Court as it works to close the guardianship action, (2) safeguarding the late person with a disability’s assets for transfer to their estate, and (3) accounting for the guardian’s remaining unaccounted for pre-death service.” Id. at 2-3.

The Court denied the petition to expend for final bills. A creditor would have the right to file a claim against the person with disability’s estate for unpaid debts or expenses. The Court ordered the co-guardians to file a petition with the Register of Wills to open the decedent’s estate and, within thirty days, file with the Court a petition to terminate and the final accounting for the period concluding on the date of death of the person with a disability. Id. at 3.

2.Durable Personal Power of Attorney.

A Delaware Durable Personal Power of Attorney terminates when the principal dies. 12 Del. C. § 49A-110(a)(1). Likewise, the agent’s authority terminates when the personal power of attorney terminates. 12 Del. C. § 49A-110(b)(4).

Therefore, as in the guardianship context, upon the death of the principal: (1) the agent appointed by the personal power of attorney lacks authority under that document to pay final expenses, and (2) Delaware’s post-mortem statutory scheme applies: if the assets of the deceased individual require the opening of a probate estate as determined by statute and court rule, the proposed personal representative must file a petition with the Register of Wills to open an estate, be appointed personal representative, and then complete the probate process under Title 12 of the Delaware Code and Court of Chancery Rules Subpart XIX.

3.Revocable Living Trust.

Revocable Living Trusts resolve the “death” dividing line. In the trust agreement, the trustmaker appoints one or more trustees to serve at each of the relevant times: upon initial trust creation, upon the trustmaker’s incapacity, and upon the trustmaker’s death. Usually the trustmaker is his/her own trustee initially, and names a different or co-trustee to serve upon incapacity, and then upon death, of the trustmaker. Assets properly titled in trust name before the trustmaker’s death are part of the trust after the trustmaker’s death and do not pass through probate. The successor trustee to serve upon death of the trustmaker takes office via the terms of the trust agreement which is his/her source of legal authority. The transition is smooth and requires no court involvement. Final bills are paid with trust assets by that successor trustee.

Conclusion.

Revocable living trusts are known for providing ease of post-mortem administration. Many probably think of that benefit mainly in terms of distributing the trust estate to the beneficiaries. But in the short term, long before the beneficiaries are to receive their distributions, the final bills must be ascertained and paid, assets marshaled, and the trust estate wound up. This includes selling the home, determining assets and balances, etc. The trust becomes an administrative trust for the purpose of winding up and receives its own Employer Identification Number, and a Certification of Trust is issued to the successor trustee as authority to act. Post-mortem tasks are significantly easier to complete as trustee of a trust, rather than as personal representative of a probate estate.

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When does 'old age' begin? Public perception may be skewing later.

The older people get, the later they think old age starts, according to a new study.

By Aria Bendix and Katie Mogg

How old is considered old?

The answer to that question appears to be changing as people live longer, retire later and maintain higher levels of physical and mental health into their older years.

A study published Monday suggests that people in their mid-60s believe old age starts at 75 — but the older people get, the later they think it begins.

The research, published in the American Psychological Association’s Psychology and Aging journal, examined data from around 14,000 participants in the German Aging Survey, which studies old age as a stage of life in Germany. The participants were born between 1911 and 1974 and entered the survey at ages 40 to 85.

The people studied reported their perceptions of old age up to eight times over 25 years. For every four to five years that passed, participants reported that old age started a year later compared to their last assessment.

Participants who were born earlier — from 1911 to 1935 — thought that old age started earlier compared with participants born after 1935.

“Our perceptions or conceptions of old age are obviously shifting across historical time. People nowadays who are in midlife or who are older adults believe that old age begins later than did their peers 10 or 20 years ago,” said Markus Wettstein, the study’s lead author and a psychologist at Humboldt University of Berlin.

Wettstein said the change could be due, in part, to increases in life expectancy: German life expectancy is around 81 years at birth, up from 71 years in 1974. Many people in Germany are also living healthier lives for longer. Studies have shown improvements in heart health, cognitive abilities and overall quality of life in the country's older population over time.

“People who feel younger also believe that old age starts later,” Wettstein said.

Participants in the study who were lonelier, had more chronic diseases or reported being in poorer health were more likely to believe that old age started earlier.

Women, on average, thought that old age started around 2.4 years later than men did.

However, Jacqui Smith, a psychology professor at the University of Michigan who was not involved in the research, cautioned that the results may not apply to other countries, since cultural views of aging and historical trends vary between communities. In the U.S., for instance, life expectancy declined during the Covid pandemic, from 79 years in 2019 to 76 in 2021 — whereas Germany's life expectancy has been fairly consistent since 2014.

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