You, a close friend, or a family member may have experienced or may know someone who has experienced a loved one unable to make end-of-life decisions for him or herself.  In most cases, the parents, spouse, children, or siblings must make those health care decisions instead all the while wondering if it’s what their loved one would want.  Let’s look at a recent example in which an incapacitated individual had to rely on an unlikely agent.

Former NBA star Lamar Odom was found unconscious and fell into a coma while he was going through a pending divorce with Khloe Kardashian. Mr. Odom did not have a living will to let his family members and doctors know what his wishes were in the event he was found to be permanently incapacitated or terminally injured.  Furthermore, he had not appointed an agent to make health care decisions for him while he was temporarily incapacitated in a coma. Rather, in this scenario, his soon-to-be ex-wife remained responsible for making life and death decisions because they were still married when the medical event occurred. Would you feel comfortable letting your ex-spouse making your end-of-life decisions on your behalf? How about doctors who are 50/50 on leaving you on life support because you have a terminal illness or injury? Below, we will talk about some important legal documents you’ll want to have prepared before a crisis occurs.

Advance Medical Directive (“Living Will”)

A Living Will is a legal document with written instructions that outline your medical preferences in the event that you are incapacitated. When you are terminally ill or seriously injured, in a coma, suffering for dementia, or at the end of your life, this document lets your doctors and caregivers know your choices as to whether to provide you with life-extending medical treatments, food, and other nourishment as well as pain management and other “palliative” care and hospice.  A Living Will lets the people around you know what you would want ahead of time and relieves them of the burden guessing what your wishes would be if critically ill or injured or terminally incapacitated with no possibility of a cure or improvement.

Healthcare Proxy (a/k/a Health Care Power of Attorney)

A healthcare proxy is a legal document that gives you the power to appoint another person to make health-related decisions on your behalf if you are temporarily or permanently incapacitated. The person you name in this document will have the right to request or refuse treatment just as if you were making the decision and capable of communicating your wishes to a physician or other third party.  Your agent cannot use the HCPOA to make any decision you would not make if you had capacity.  The agent can use this document to engage with health care insurance carriers and obtain medical records whether you’re incapacitated or not.

Durable Power of Attorney (General or Special)

A durable power of attorney (DPOA) is similar to a healthcare proxy, however, this document allows you to appoint an agent, who will have the authority to perform an array of actions on your behalf, such as banking transactions, applying for public benefits and the Permanent Fund Dividend, and paying and incurring debts.  Your capacity is irrelevant provided the POA is “Durable” and survives your incapacity.  With a DPOA, you can appoint more than one agent to act on your behalf, together or separately, for general actions or specific events.

Once you have these ancillary documents in place, remember to review them often and update them when you experience significant life changes such as:

• Divorce or separation;
• Marriage or parenthood;
• Serious health issues or medical treatments; and
• A move to another state.

You also will need to change your designations if your agent moves, dies, or is no longer willing or able to serve. 

If you have not yet put your affairs in order, maybe you are thinking, “This is important. I should do this.” The sad reality is that most won’t do anything until it’s too late making a guardianship or other legal proceeding necessary.  Life gets in the way making us think “there are more pressing problems to deal with right now.”  Before you know it, a family member or friend may become incapacitated, temporarily or permanently, and the family needs to make serious and critical health decisions.

Don’t wait for one of these situations to arise. Instead, grab a Post It® and write “contact estate planning attorney. Need to put my affairs in order.” Keep this message in the middle of your desk until you finish your tasks. You’ll be glad you did, and your loved ones will be grateful they are not left with the unfortunate role of making life-or-death decisions on your behalf without fully knowing your wishes.

Contact Polaris Law Group, P.C. to schedule a consultation and plan for the unexpected.

Spendthrift Clause – What is it?

First, let us explain what a trust is. A trust is a legal contract drafted by an attorney to specify the duties of a named trustee, who will ensure that your assets are managed according to your wishes both during and after your lifetime. Although there are various types of trusts, generally, an irrevocable trust is opened to protect your trust assets from creditors or other threats.

In the irrevocable trust, you direct the trustee to manage your trust assets and distribute them to your beneficiaries in the way you see fit. With a spendthrift clause inserted, you can limit the ability of creditors or your beneficiaries in reaching the pot of money in your trust. Establishing a spendthrift trust can prevent financially unstable beneficiaries from mishandling their inheritance. It can also prevent beneficiaries from withdrawing assets prematurely and limit the collection of judgments and liens against trust assets by creditors.

Instead of giving a lump sum, you can provide a monthly benefit of a specific amount with a Spending Trust. Beneficiaries facing any financial hardship cannot use the trust to repay their creditors, and creditors generally cannot place liens or other judgments against your trust assets.

How Can a Spendthrift Clause Benefit Your Family?

A spendthrift clause can benefit your family by protecting your assets from creditors and ensuring your loved ones will be cared for after your death.

You may also want to insert a spendthrift clause in a testamentary instrument to protect beneficiaries who:

• Might go through a divorce
• Spend money recklessly
• May file for bankruptcy
• Have an addiction: drugs, gambling, shopping, etc.

If you’re worried about a beneficiary mismanaging his or her inheritance, you may give a monthly allowance instead of a lump sum. This way, your beneficiary can get the money they need without misusing the entire inheritance. The spendthrift provision prevents your beneficiaries from using the trust funds to pay creditors off.

We Can Help!

An experienced estate planning attorney can help you choose the appropriate spendthrift clause that best suits your needs and prepare the legal documents necessary to establish the trust.

At Polaris Law Group, P.C., we work to protect your assets from all possible dangers, including long-term care expenses, reckless beneficiaries, creditors, and legal disputes. Knowing that you have a plan in place to care for your finances and family can give you the peace of mind you deserve going forward.

Contact Polaris Law Group, P.C., today to schedule a consultation.

Over half of the states allow individuals to leave property to designated recipients by way of a handwritten LW&T.  Alaska is one of those states recognizing as valid a “holographic” LW&T: one handwritten and signed without witnesses or attestation.  But, unlike states that require the LW&T be “entirely” handwritten by the testator (male decedent) or testatrix (female decedent) and signed at the end, Alaska’s holographic law offers Alaskans more flexibility.

Alaska Statute 13.12.502(b) states a LW&T is valid, “whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.”  That means unlike other states that require the LW&T be drafted entirely in the testator’s own handwriting, a LW&T in Alaska is valid with only the “material portions” handwritten by the testator / testatrix. 

Printed, typed, or stamped non-material portions of text typically found in commercially available LW&T templates will not render a LW&T invalid as long as the testator / testatrix fills in the blanks with the material information in his or her own handwriting.  “Material portions” of text in a LW&T are those “words identifying the property and the devisee,” or recipient of the deceased’s estate.  See Restatement of the Law (Third) of Property (Wills and other Donative Transfers) § 3.2 (describing Alaska’s statute as a “[t]hird-generation holographic-will statute-Original Uniform Probate Code).”

Also, an Alaska testator / testatrix can sign the holographic LW&T, anywhere on the document and without the need for two witnesses.  In other words, the signature of a testator or testatrix need not be a “terminal signature” that is, one placed at the end of the instrument.  Rather, Alaska courts accept as valid a signature anywhere on the holographic LW&T and recognize even the handwritten name of the decedent embedded in the text of the LW&T as the signature of the testator / testatrix, provided the judge determines there was intent by the decedent to create and execute the complete instrument.  See In re Estate of Baker, 386 P.3d 1228, 1233-37 (Alaska 2016) (finding the handwritten name of testatrix in the exordium clause at the will’s beginning sufficed as a signature).

If you decide to write your own will by hand or write the material portions of a LW&T in the blanks of a template, be sure to include these basic terms in your signed, handwritten LW&T: (1) the month, day, and year of the writing; (2) text stating the instrument is your “last will and testament” revoking all prior wills and codicils; (3) provisions appointing a named personal representative (“PR”) and, preferably, listing an alternate; (4) waiver or nonwaiver of the PR bond; (5) clear and sufficient descriptions of property and identities of recipients and any alternate recipients; and (6) distribution directions if any named recipient dies before you (e.g., the share goes to the deceased recipient’s descendants or the surviving co-recipient(s) named in the LW&T).  For a complimentary, initial estate planning consultation, contact Polaris Law Group, P.C., at https://polarislawgroupak.com/contact/ or 907.885.6619.

In Bohn, parents holding a valid 2007 HCPOA tried to use it to stop inpatient treatment of their 26-year-old son by attending physicians they believed were worsening their son’s condition by administering psychiatric and other medications, which were making him “effectively catatonic.”  In response, the hospital restricted the parents’ access to their son and announced it was now “making all health care treatment decisions” for the son in lieu of the parents, the son’s HCPOA agents (a move the Court later found prohibited under AS 13.52.080(a)). 

After the hospital got Adult Protective Services (“APS”) involved, the parents produced a general power of attorney (“POA”), also granted by their son, in an attempt to obtain his medical records and transfer him to another medical facility. In response, APS filed for guardianship.  With proof of notice to the parents questionable, a hearing was held with the Office of Public Advocacy (“OPA”) appointed as temporary guardian and the parents’ POA temporarily suspended.  Soon thereafter, OPA became full guardian, and the hospital transferred the son to Seattle for psychiatric treatment. The parents followed and were successful temporarily removing their son from the facility only to have him returned three days later by law enforcement escort. During his absence from the facility, however, his condition improved without the medications prescribed by the Alaskan physicians.  The new medical staff in Seattle noted the improvement and also withheld the prior prescribed medication regime. The son recovered enough to be discharged two months later, and he and his parents returned to Alaska. 

The son sued the hospital claiming, among other things, it violated his rights under the HCDA when its physicians and staff substituted their judgment over that of his parents as his agents under his HCPOA. The Supreme Court agreed. Focusing on the son’s Alaska hospitalization, the Court held the HCDA’s immunity provision was limited to protecting health care providers who make “good faith mistakes about an individual’s legal authority as an agent or surrogate” under an Alaska HCPOA, not where the health care providers believe the validly appointed agent is not acting in the patient’s best interest.

The Court found the hospital’s assertion of HCDA immunity under these facts “undermines the role of the surrogate or agent.”  Protecting health care providers under the HCDA where they usurp a HCPOA agent’s authority simply because they disagree the agent’s decision is in the best interest of the patient would risk “turning [the HCDA immunity provision] into the subsection that ate the statute,” as argued by the son’s legal team. The Court further opined:

“From the providers[‘] perspective, if the surrogate or agent were acting in the patient’s best interest, the surrogate or agent would have made the same decision as the provider.  And if the surrogate or agent did not make the same decision, the provider would then be able to assume that because the surrogate or agent was not acting in the patient’s best interest, that person lacked authority to direct the patient’s care.  As a result[,] any provider in that situation would be free to ignore any direction from the surrogate or agent without fear of civil or criminal liability.”

Interpreting the statute as enacted and later amended by the Alaska Legislature, the Court continued, meant interpreting the HCDA in such a way that avoids “eliminating the role of a surrogate or agent altogether,” the ultimate result of the flawed argument advanced by the hospital.  Simply put, the Court concluded the HCPA immunity provision’s purpose is “to protect health care providers who accidently follow health care decisions made by the wrong people” or persons who lack “legal authority as an agent or surrogate.” 

Clearly, health care providers will not be able to seek refuge under the HCDA’s immunity provision if they ignore a HCPOA and later assert the agent lacked authority because the provider determined the agent’s decisions were not in the principal-patient’s best interest.  Such an argument, the Court concluded would “functionally eliminate the role of the agent or surrogate, which is contrary to the HCDA’s purpose.”  To succeed under that basis, a health care provider must show it rejected a HCPOA agent’s instructions only under the express exceptions provided in the HCDA, such as not following the patient’s wishes, values, and best interest.

Today’s decision highlights the importance of having a valid durable HCPOA and appointing an agent, who clearly understands the statutory authority and powers granted under Alaska law.  Undeterred by the various state agencies and the hospital’s full administrative authority, the parents in Bohn successfully pressed on asserting their power of appointment given by their son as principal gave them legal authority to act as his agent under the statute despite the health care providers disagreement.  In their fight, the appellants solidified for all Alaskans the authority and powers given an agent under an Alaska HCPOA as granted under Alaska Law.

If you have questions about a power of attorney for health care or any other purpose, you can call Polaris Law Group, P.C., and set up a complimentary legal consultation to discuss your POA needs and other Estate Planning matters.  Call  907.885.6619 or visit us at www.polarislawgroupak.com.