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.

Continue ReadingWhat’s the Difference between a Living Will and a DNR?

Your Children Want You to Have an Estate Plan

Clients often forget that a solid estate plan makes things much easier for their kids. Even the kids want you to have an estate plan!

Many clients delay creating an estate plan.  People don’t want to think about scenarios where they are deceased or incapacitated, and some people delay because they are afraid of costs.  Clients often think of the impact of estate planning on themselves, forgetting that their children want them to have an estate plan too.

After all, it is the adult children who are in charge of aging parents when they need long term care. They are also the ones who settle estates when parents die. Even if they can’t always come out and tell you, the recent article, “Why your children wish you had an Elder Law Estate Plan” from the Times Herald-Record spells out exactly why an elder law estate plan is so important for your loved ones.

Avoid court proceedings while living. In a perfect world, everyone over age 18 will have a financial power of attorney, a medical power of attorney and a living will, as well as other estate planning documents to facilitate their use.  These documents appoint others to make financial, legal, and medical decisions, in case of incapacity. Without them, the children will have to get involved with time-consuming, expensive guardianship proceedings, where a judge appoints a legal guardian to make these decisions. Your life is turned over to a court-appointed guardian, instead of your children or another person of your choosing.  This is an expensive and invasive process.

Avoid court proceedings after you die. If you die and you own assets in your own name that do not pass by contract, you will likely go through the probate process, a court proceeding that can be time consuming and costly. Not having any assets in trusts leaves your kids open to out of pocket costs, time, work and difficulty in gathering assets.

Wills in probate court are public documents. Trusts are private documents. Utilizing trusts can keep the details of your estate out of the public eye.

An elder law estate plan also plans for the possibility of long term care and costs. Nursing home care costs can be extreme, and many clients don’t plan for such a creditor during their life time. If you don’t have long term care insurance, you should consider an estate plan that facilitates long term care government benefits, such as a revocable trust plan.

The “elder law power of attorney” has unlimited gifting powers that could save about half of a single person’s assets from the cost of nursing homes. This can be done on the eve of needing nursing home care, but it is always better to do this planning in advance.  This is one of the main roadblocks to Medicaid planning later in life.  Client’s don’t update their powers of attorney and limited their gifting options.

Having a plan in place decreases stress and anxiety for adult children. They are likely busy with their own lives, working, caring for their children and coping in a challenging world. When a plan is in place, they don’t have to start learning about Medicaid law, navigating their way through the court system, or wondering why their parents did not take advantage of the time they had to plan properly.

You probably don’t want your children remembering you as the parents who left a financial and legal mess behind for the them to clean up. Speak with an elder law estate planning attorney to create a plan for your future. Your children will appreciate it.

And kids, see here for speaking with your parents about estate planning.  https://www.galliganmanning.com/probate-lawyers-say-talk-to-your-parents-about-estate-planning/

Reference: Times Herald-Record (May 23, 2020) “Why your children wish you had an Elder Law Estate Plan”

Continue ReadingYour Children Want You to Have an Estate Plan

Why an Attorney Should Help with a Medicaid Application

Seniors should consider medicaid asset protection planning as part of their estate plan.
Hiring an attorney to prepare a Medicaid application may save money in the long run and get your loved one the care they need.

Elder law attorneys can be very helpful when it is time to complete a Medicaid application, and they can save money in the long run, ensuring that you (or a loved one) get the best care. Instead of waiting to see how wrong the process can get, says The Middletown Press, it’s best to “Use a lawyer for Medicaid planning” right from the start. Here’s why.

Conflict of interests. When a nursing home refers a family to people for preparing the Medicaid application or offers to complete it themselves, very often the person has dual loyalties: to the nursing home who refers them the work (or signs their checks), and to the family who will pay them a fee for help with applying for benefits. Whose interests comes first?

Everyone wants the Medicaid application to be successful, but let’s be realistic. It’s in the nursing home’s best interest that the resident pays privately for as long as possible, before going on Medicaid. It’s in the resident or family member’s best interest to protect the family’s assets for care for the resident’s spouse or family.

An attorney has a duty of loyalty only to his client. He also has an ethical and professional responsibility to put her client’s needs ahead of her own.

Saving money is possible. Nursing homes in some areas cost as much as $15,000 a month, in Texas they tend to be cheaper, but still in the several thousands.  While every market and every law practice is different, it would be unusual for legal fees to cost more than a month in the facility. With an experienced attorney’s help, you might save more than her fee in long-term care and related costs.

Further, attorneys can find ways to complete a Medicaid application and successfully obtain benefits without simply spending all of your assets before applying.  Many times nursing home staff will offer to do the Medicaid application after the assets are nearly entirely spent.  A quality elder law attorney will find ways to complete and file a successful Medicaid application while protecting your legacy.

The benefit of experience. It’s all well and good to read through pages of online information (Google, Esq.), but nothing beats the years of experience that an attorney who practices in this area can bring provide.  Any professional in any field develops knowledge of the ins and outs of an area and applying for Medicaid is no different. Without experience, it’s hard to know how it all works.  See Mary’s blog for more detail about how an attorney helps with this process.  https://www.galliganmanning.com/when-you-need-an-elder-law-attorney/

Peace of mind from a reliable, reputable source. Consulting with an experienced attorney about a Medicaid application will help you avoid years of wondering, if there was more you could have done to help yourself or your loved one.

There are multiple opportunities for nursing home residents to preserve assets for themselves and spouses, children and grandchildren, particularly when a family member has long term care needs. However, here’s a key fact: if you wait for the last minute, there will be far less options than if you begin planning long before there’s a need for a Medicaid application.

Reference: The Middletown Press (July 29, 2019) “Use a lawyer for Medicaid planning”

Continue ReadingWhy an Attorney Should Help with a Medicaid Application