The concept of “Death Dinners” is a growing trend gaining momentum nationwide. Talking about death over dinner may not seem appetizing, but this idea is the result of the chronic problem of our societal avoidance of the most unpleasant and certain event in life. There are organizers, both volunteer and for profit, facilitating gatherings where family members discuss their desires and concerns surrounding the end of life.
Survey results confirm that as nation, we fail to properly confront and prepare for death and the end-stage conditions that are often much harder on loved ones than death. This avoidance factor is understandable. Recently, an elderly mother’s resistance to this discussion inspired the title of her daughter’s memoir called “Can’t We Talk About Something More Pleasant?” According to the Pew Research Center, about 70% of people lack a living will. Approximately 20-30% die at home while 70% desire this outcome. I suspect the understandable human tendency to avoid and put off the scary and disturbing prospect of death is largely to blame for the irrational failure to prepare for the inevitable. Though we can easily pay lip service to ideas such as “death is part of life,” planning advocates like death dinner organizers will likely need to continue working diligently to get the attention of the majority of the public.
Oddly, the town of La Crosse, WI boasts the astounding distinction of 96% of its residents having advanced health care directives. This is a document delegating a loved one the authority to make health care decisions on behalf of an incapacitated patient. The credit for this remarkable rate goes to an influential local hospital official who has persuasively advocated the virtues of advanced health care planning. As an aside, this community’s average health care costs fall far below the national average.
There is no shortage of cautionary tales stemming from failures to plan. At our law firm, we have counseled several families suffering from their deceased relative’s negligence. In one case, a husband died suddenly without a will and without ever having added his wife to the deed of the marital home he purchased before the marriage. After having lived in the home for several years and contributing to its maintenance, the widow must now sell the home and share the proceeds with her late husband’s daughter from a prior marriage. We can’t be completely certain of his intentions, but there is much evidence indicating he wanted his wife to inherit the home they shared, rather than the eventual legal outcome, including a writing he signed that does not constitute a valid will and is irrelevant for all intents and purposes.
In another case, a senior Alzheimer’s victim could have delegated to his wife the right to manage his affairs through a power of attorney while he remained competent. Following the onset of dementia and complete lack of capacity to knowingly sign such a directive, the family must resort to an expensive and lengthy legal guardianship action. I could go on for pages.
It’s helpful to understand some basics about estate planning. A last will and testament or simply, a “will,” is the document that sets forth one’s wishes regarding assets and heirs following death. For those with minor children, a will addresses very important issues including the naming of a guardian to raise the kids and a trustee to manage their money until they reach the age at which they can own property without strings attached.
A living trust is commonly used as an alternative to, or in conjunction with, a will. Generally, trusts are more complex and expensive to create. One common motive for using a trust is to avoid the legal process of probate. Estate plans should not be considered “off the rack” purchases and should be carefully tailored to meet the needs of the family according to all their specific circumstances and budgetary concerns.
Frequently confused with a last will and testament is the “living will.” The living will is a much narrower document delegating the right to make hard end of life decisions such as to “pull the plug” and discontinue life support under certain circumstances when there is no reasonable hope of recovery. Similar to a living will, but for conditions not reaching that level of severity, we use a “health care surrogate” or “advanced health care directive.” A power of attorney may cover many situations as narrowly or broadly as desired when a person wants to delegate the authority to make a variety of decisions. In Florida, a power of attorney can no longer be considered “springing,” meaning it would take effect after a determination of incapacity.
Though these documents are important and useful for virtually anyone, unmarried couples should take special note of the need to spell out their wishes, as the legal protections of marriage do not apply.
At CPC Law, we urge all families to confront the reality of death and serious disability while its members remain alive and healthy, even if it takes a death dinner to accomplish this important task. We welcome feedback from our clients and the public as to how we can help spread the gospel of preparation and add value to this important discussion.