What’s the Difference between a Living Will and a DNR?

Clients occasionally ask about “DNRs” and whether we prepared them as part of the estate plan during our consultations.  We do not, but we do prepare living wills.[i] A living will and a Do Not Resuscitate Order, known as a DNR, are very different documents. However, many people confuse the two. They both address end of life issues and are used in different settings, according to the article “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’” from Florida Today.

As a quick aside, many states articulate medical decision making differently, and that comes out in estate planning.  For example, some states have advanced care directives with more exhaustive instructions, others are very simplistic.  For this blog’s purposes, I’m focusing on living will versus DNR.

What is a Living Will?

A living will is a statement describing a person’s wishes about receiving life-sustaining medical treatment in case of a terminal illness or irreversible if the condition is incurable. It is used when you can’t speak for yourself and gives guidance to a decision-maker who will act on your behalf.  This includes choices such as whether to continue the use of artificial respiration, feeding or hydration tubes or other artificial means to prolong life.

The living will is used to make your wishes clear to loved ones and to physicians. It is prepared by an estate planning or elder law attorney, often when having an estate plan created or updated. It will be used if and when the situation arises.

What is a DNR?

A DNR is a medical directive used to convey wishes to not be resuscitated in the event of respiratory or cardiac arrest. This document needs to be signed by both the patient and their physician. It’s often printed on brightly colored paper, so it can be easily found in an emergency.

To draw the distinction a little more clearly, the living will comes into play when the doctors have done what they can and nothing else is expected to help (the terminal condition) in which case your wishes are follow, and the DNR is a request not to try and resuscitate.  Most people if they are in my office want the living will, not the DNR.

The DNR should be placed in a location where it can be easily and quickly found. In nursing homes, this is typically at the head or foot of the bed. At home, it’s often posted on the refrigerator.  It is also often used in hospital settings.  The DNR needs to be immediately available to ensure that the patient’s last wishes are honored.

When the DNR is in effect and easily found, the emergency responders will not initiate CPR if they find the patient in cardiopulmonary arrest or respiratory arrest. They may instead provide comfort care, including administering oxygen and pain management.  To be clearer, a DNR doesn’t mean doctors won’t treat you, but it means they won’t resuscitate in the event of arrest.

If a person is admitted to the hospital, their living will is placed on the chart so that it can be followed appropriately. Once a clinical determination of a terminal and irreversible condition has been made, the terms of the living will are followed.

As one more final point, clients sometimes confuse the medical power of attorney and living will.  Mary did an excellent blog cover the basics of each, their differences, and why having both is beneficial. You can find that here:

https://www.galliganmanning.com/living-wills-and-medical-powers-of-attorney-why-they-are-important/

Reference: Florida Today (July 19, 2022) “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’”

[i] In Texas, we use a “Directive to Physicians.”  This is largely analogous to living wills in other jurisdictions.  Since I’m writing online and to more than just a Texas audience, I’ll use the more generic term of living will.

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How Do I Store Estate Planning Documents?

It’s a common series of events: an elderly parent is rushed to the hospital and once children are notified, the frantic search for the estate planning documents starts. It’s easily avoided with planning and communication, according to an article from The News-Enterprise titled “Give thought to storing your estate papers.” However, just because the solution is simple doesn’t mean most people address it.

As a general rule, estate planning documents should be kept together in a fire and waterproof container in a location known to and accessible by fiduciaries, and copies of some documents should be given to the fiduciaries in advance.

Most people think of bank safety deposit boxes for storage. However, it’s not a good location for several reasons. Individuals may not have access to the contents of the safe deposit box unless they are named on the account. Often a court process is necessary for permission to open a safety deposit box if no one is named on the account.

Even with their names on the account, emergencies don’t follow bankers’ hours and access may be difficult. Further, what if the Power of Attorney giving the person the ability to access the safe deposit box is inside the safe deposit box or the principal has died and the Will is in the box.   Bank officials are not likely to be willing to open the box to an unknown person and proof of that person’s authority is in the box.  This is like locking the key in the safe.

Even further, COVID and the economy have led many banks to close or not offer safety deposit boxes.  Banks don’t want to maintain as many brick and mortar locations, so that means safety deposit boxes have to go.

When you store estate planning documents, a well-organized binder of documents in a fire and waterproof container at home makes the most sense.

Certain documents should be given in advance to certain organizations or individuals.  For instance, health care documents, like a Medical Power of Attorney, Directive to Physicians (Living Will) and HIPAA authorizations, may be given to your agents, as well as to your primary care physician or to the medical facility if you go in for a procedure.  This way, agents have the necessary documentation should an emergency occur, and medical systems can add the documents to their file for you.  This way everyone (especially medical providers) are on the same page about your wishes and who will speak on your behalf.

Mary touched on other items that shouldn’t be kept in a safety deposit box in this article.  https://www.galliganmanning.com/things-you-should-not-keep-in-your-safe-deposit-box/  

Financial Powers of Attorney should be given to each financial institution or agency in preparation for use, close in time to when you expect to need it.

This may feel onerous, however, imagine the same hours spent communicating with banks plus the immense stress if the need to use it is time sensitive. Banks often want to review POA’s in advance of their use before accepting them, and that may take several weeks.

If your estate plan includes a trust, you’ll want your trustees’ to have a copy when you are ready to give it to them, and the original can be kept safe with your documents.

Wills are treated differently than POA documents. Wills are usually kept at home and not filed anywhere until after death.

Also, with all documents, especially the Will, it is important to track and keep safe the originals.  You may sometimes be able to probate copies of Wills, but it’s better to keep the original secure and avoid the need to probate a copy.  This is less critical for other documents, but the same policy holds.

Having estate planning documents properly prepared by an experienced estate planning attorney is the first step. Step two is ensuring they are safely and properly stored, so they are ready for use when needed.

Reference: The Times-Enterprise (June 11, 2022) “Give thought to storing your estate papers”

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Estate Planning in Different States

Estate planning in different states addresses key nuances between the states’ laws for people who move or spend much time in other states.

In this very mobile society, clients often move from state to state.  Whether the move is due to job opportunities, to be close (or far) from family or just for a change of scenery, many people will live in multiple states in their lifetime.  They often don’t realize that estate planning laws vary greatly from state to state and understanding the difference could have a significant impact on whether your estate plan is effective.  It is best to get this straight shortly after moving, says The National Law Review in the recent article “Updating Your Estate Plan: What Michigan Residents Need to Know When Moving to Florida.”

It’s not just people from Michigan who move to Florida who need to have their estate plans reviewed, if they are snowbirds or making a full-time move—it’s anyone who moves to another state, from any state. However, Florida’s popularity makes it a good example to use.

Florida restricts who is permitted to serve as a Personal Representatives under a will. The personal representative, also known as an executor, must be a descendant or ancestor of the decedent, a spouse, brother, sister, aunt, uncle, nephew, niece or descendant or ancestor of any such person or a Florida resident.

Florida doesn’t recognize “no contest” clauses in trusts or wills. It also does not recognize unwitnessed testamentary documents, which are handwritten documents even if they are in your own handwriting. By way of example, Texas does and have had to utilize that option during the COVID-19 lockdowns.

Florida also has a special set of laws, known as the Homestead laws, designed to protect a decedent’s surviving spouse and children. You may have had other plans for your Florida home, but they may not be passed to the people you have designated in your non-Florida will, if they don’t follow the Sunshine State’s guidelines.

Power of Attorney laws differ from state to state, and this can create huge headaches for families. In many states, powers of attorney can be “springing,” meaning they become effective upon disability. In Florida, once a Durable Power of Attorney is signed, it is effective. Florida may accept a power of attorney from another state, but Florida law will be applied to the agent’s actions, and restrictions will be based on Florida law, not that of another state.

Estate planning in different states is very unique when it comes to estate planning documents concerning medical and financial decisions while you are living, these are also different. I routinely tell people that if you relocate, you have to change these documents.  A living will names a person, known as a “Patient Advocate” in Michigan or a “Health Care Surrogate” in Florida, who is authorized to make decisions regarding end of life care, including providing, withholding, or withdrawing life-sustaining treatment. In Michigan, you need two doctors to certify a patient’s incapacity for non-life-or-death decisions. In Florida, only one doctor is needed.  Even simpler, these documents will not be reviewed by attorneys.  They will be reviewed by medical professionals rendering care to you.  So, it is best to give them the format they anticipate so there is not delay in providing care to you.

On a broader prospective, estate administrations are very different in different estates, and that leads to different goals in estate planning.  I’m admitted in Pennsylvania, New York and Texas.  In Pennsylvania, we frequently used wills as the primary estate plan vehicle because the probate process is easy to initiate, and all of the work of an estate administration exists whether or not you are using a trust.  In New York, we almost exclusively used trusts.  Probate was far more involved and expensive, which made living trusts extremely helpful to clients. In Texas, we definitely draft more trusts as they are still beneficial, but it isn’t nearly as critical as it is in New York.   To make it one step worse, Pennsylvania has inheritance taxes, New York has estate taxes, and Texas has neither.  Those are three very different estate planning realities.

As a final point, if you expect to relocate in the future and are considering estate planning, I strongly recommend a living trusts.  Trusts tend to be portable as they go outside of the court probate process, which is where many of the state nuances lie.  This is also helpful because clients who move often have real estate in multiple states.  Real property in multiple states potential means multiple probates, which people don’t expect.

So, if you are planning on a move or even if you just spend substantial time outside of your home state, meet with your estate planning attorney to understand how any and all of your estate planning documents will work—or not—when you are in another state.

Reference: The National Law Review (June 30, 2021) “Updating Your Estate Plan: What Michigan Residents Need to Know When Moving to Florida”

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