Pacemakers Can Preempt Your Living Will Directives

An article appeared in The New York Times Magazine on June 20, 2010, entitled “What Broke My Father’s Heart” by Katy Butler.  http://www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html?_r=1&pagewanted=1

It chronicles the life and death of her father, a retired college professor who had a pacemaker installed shortly after dementia set in.  The pacemaker’s battery was expected to last ten years.  Both her parents had signed living wills, and in fact and were adamantly opposed to their lives extending beyond usefulness and capacity to enjoy living.  They did not wish to be a burden to each other or their children.  Butler’s memoir attracted 442 reader comments http://community.nytimes.com/comments/www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html and five letters reacting to the article were printed in the July 4, 2010 issue of The New York Times Magazine http://www.nytimes.com/2010/07/04/magazine/04Letters-t-002.html.

A stroke at age 79 disabled Butler’s father, Jeffrey. Several years later, after dementia had progressed a surgeon refused to operate on a painful hernia without installing a pacemaker.  Butler’s mother was anxious to relieve her husband’s pain, exhausted with care giving.  In deference to the doctors, she gave her consent to the implant. The author’s heart stopped when she later learned about her mother’s decision.  This medical decision took a minute, but resulted in devastating consequences for her father and the family that lasted many more years. 

What the doctor did not point out was that the pacemaker could permit Butler’s father to live in a mute and dependent state for another 10 years.  The option of using a temporary external pacemaker was not brought up or discussed.  The temporary external pacemaker could have been disconnected after the surgery.

Medicare would have paid the doctor $54 for a (long) office visit to discuss the temporary external pacemaker.  The surgeon earned $461 for the implant procedure, and the hospital a flat fee of about $12,000, of which almost half went to the maker of the device. The hernia was fixed.  In-home care for the rest of Jeffrey’s life cost tens of thousands of dollars.  This is how our country’s medical cost and medical insurance problem grows. 

Several years later, with her father still alive and in a demented state, Butler learned that pacemakers could be deactivated without surgery.  Her father’s heart would return to its previous slow rhythm, and he would eventually die, perhaps in his sleep.  Butler’s mother asked the family physician to deactivate the pacemaker.  He refused. 

Butler and her mother learned that her mother had the legal right to ask for the withdrawal of any treatment under her husband’s health care proxy.  The pacemaker was, in theory, a form of medical treatment.  But her husband’s health care proxy requested no life support if he was comatose or dying, but said nothing about dementia, and did not define a pacemaker as life support.  They learned that (as of that time) no cardiology association had given its members clear guidance on when, or whether, deactivating pacemakers was ethical.  No physician or hospital would help them. 

Two years later (nine years after the onset of his dementia), Butler’s father finally died in a hospital, of pneumonia. His pacemaker continued to work. Butler’s mother died a short time later..  She had declined open-heart surgery after the surgeon said he would refuse to honor her do-not-resuscitate order. “It would not be fair to his team,” the doctor said.

Since her father’s death, the Heart Rhythm Society and the American Heart Association have issued guidelines saying that patients or their legal surrogates have the moral and legal right to request the withdrawal of any medical treatment, including an implanted cardiac device.  In addition, it says that deactivating a pacemaker is neither euthanasia nor assisted suicide, and that a doctor could not be compelled to do so in violation of his moral values. In such cases, it continues, doctors “cannot abandon the patient but should involve a colleague who is willing to carry out the procedure.”  This guideline came too late for Butler and her family. 

You can benefit from the sad experience of Kathy Butler’s family during the last year of her father’s life and her generosity in sharing it with us. When you are executing a living will or medical directive, read the language that defines medical or mental triggers and removal of possible treatments very carefully.  Make sure that life support can be terminated if you suffer from dementia, not only if you are comatose or dying.  Make sure the directive permits the tuning off or removal of a pacemaker.  

© Laurie Israel. 2010.  All rights reserved.

Protecting Poochie

After Leona Helmsley died in 2007, her $12 million trust for her dog, “Trouble”, was big news.  The trust was upheld (New York has a pet trust law), although the amount was   reduced to $2 million, with the rest going directly to charitable organizations, the contingent beneficiaries of the trust.  

Why would a little dog need so much money?  Pet trusts can allow for the costs of a caretaker living in the former home of the dog owner.  Sometimes the trust might direct that a smaller, less expensive place be purchased to house the pets and the caretakers.  These trusts can and do fund care for pets after the death of their owner that is as expensive as 24/7/365 at-home nursing care for an elderly persons.

Over the years, a number of clients have asked me to put in provisions in their wills with an aim to protect their dear pets after their timely or untimely demise.  I have balked at this request for a number of reasons.  First of all, Massachusetts does not currently have a “pet trust” law, and it is unlikely that a “pet trust” would be upheld under current probate practice.  In addition, writing into a will the allocation of money to a person to benefit a pet makes the provision a “testamentary trust”.  This results in complications and ongoing and expensive monitoring by the probate courts, including filing of annual accounts.  All this trouble, expense, and uncertainty was surely not intended by the future testator.   

Another reservation I have in drafting will or trust provisions to care for pets is that my client is essentially asking me to write a trust for tangible personal property.  Yes, Poochie is a “thing” according to the law, not a living being filled with love and emotion as we (me included) believe our pets are.  The idea of a trust for tangible property or a “thing” rubs me the wrong way.  I would not write a trust for a lamp.  Why would I write one for a dog? 

Provisions for pets in wills and trusts also raise problematic factual issues.  Does Dorothy keep the $10,000 if she takes beloved Poochie, keeps it for two days, then gets rid of him?  What if Dorothy decides to bring Poochie to a kill center one year after Dorothy gets her money?  Does it matter whether the trip to the kill center is motivated by Poochie’s incontinence or incessant barking? 

Luckily, our Massachusetts legislators have been burning the midnight oil thinking about this issue.  Perhaps the emphasis is on pets because they are one of the few things the legislators can agree on.  They have decided to put forward a “pet trust” law like the one that has been enacted by 40 or so other states.

House Bill No. 1467 was filed on January 14, 2009.  “An Act Relative to Trusts for the Care of Animals” would put to rest the question of whether a trust for a pet is valid.  It is clear that one would have to be a person of fairly significant wealth to have a trust drafted and then have it operated after death by trustees for the benefit of Poochie. 

I imagine that in many cases the trustee’s fees will be greater than the cost of poochie’s food and medical bills.  Will the trustee pay a person to take care of the dog in the keeper’s own home?  Would there be a premium if the dog can sleep on the caretaker’s couch or bed?  The possibilities are endless.   (Note to President Obama – new job descriptions:  pet trustee, pet trust dog caretaker.)

The House Bill gives the probate court the duty to name a trustee if no one is named as trustee of the trust, or if the named trustees are not willing to serve.   This will give pet-loving lawyers and others an exciting opportunity to serve as court-ordered trustees of a pet trust.  I may look into this opportunity as soon as the bill becomes law.  Perhaps the court will need to appoint guardians ad litem for dogs or counsel for dog  if something adverse happens in the trust arrangement or caretaking.    (Second note to President Obama:  new job opportunities as court-appointed pet guardian ad litem and counsel-for-the-dog.)

You will be able to designate life insurance to the pet trust, but make sure you don’t name your cat or dog as beneficiary.  Do not name the beneficiary as, “Sally (a cat).”  That is not OK.  Sally is tangible property and cannot take the money to the bank and open a bank account.   Name the trust or the trustee as beneficiary.

But, wait until House Bill No. 1467 passes before changing your beneficiary designations and estate plan in favor of your cat or dog.

Tiger Woods – Throw that Prenuptial Agreement Away!

by Laurie Israel.   I’ve been hearing the sorry tale of Tiger Woods’ alleged deficits as a faithful husband to his beautiful Swedish wife, Elin Nordegren.  It is just a more publicized and extreme version of what I see in my law practice where I spend my days as a divorce lawyer.  In youthful marriages (Tiger is 33, Elin is 29, and have been married for 5 years), the pledge of fidelity is often a difficult one to maintain. 

According to Forbes Magazine, Tiger’s net worth from his work as a professional golfer is about a $600 million dollars.  (The $1 billion figure in the news is his lifetime earnings, not net worth.) 

Tiger actually fits the profile of having a good chance of having a marriage that lasted.  He met his wife four years before they were married.  Tiger’s parents remained married until his father’s death in 2006. When a child’s parents remain married, the child generally has a better chance of having a lifelong relationship.

 However, there were three strikes against him.  Tiger had become a very wealthy man at a very young age through his own efforts at his profession.  He has been a celebrity in the public light for a long time. These two factors alone can cause several personal and identity problems. And the third (probably the worst) problem is that Tiger (presumably advised by his attorneys) made sure that he entered into a Prenuptial Agreement with Elin prior to their marriage in 2004. This provided that Elin would get $20 million if she remained married to him for 10 years.

 Now, it appears that Tiger and his wife are compounding the error by renegotiating the Prenuptial Agreement, rather than just trashing it.

 Tiger’s first offer was to add another $5 million to the $20 million Elin would have received under the original terms of the Prenuptial Agreement.  Now, according to news reports, he is offering her another $80 million to remain with him another six years.  (Hmm, how much is that a year?)  Even $80 million for a man with $600 million is small change to buy Elin’s willingness to give Tiger another chance to recommit to his marriage.  So the message is, “You stay with me for another six years, and I will throw a little more money at you if we divorce.”  It doesn’t show very much commitment on Tiger’s part.

 The sad truth is that most fundamental problem in the Tiger Woods marriage may be that they had a Prenuptial Agreement in the first place.  It allowed Tiger to have one foot in the marriage and one foot out of the marriage.  It allowed Tiger (and Elin) to contemplate a divorce and the terms of the divorce even before they took their vows.  It allowed Elin (who was 24 years old at the time of the marriage) to make decisions with a huge impact about the financial implications of the institution of marriage before which she really knew what marriage was about.  It probably made Elin feel abused and probably made Tiger feel cruel and heartless.  Not a good way to begin a marriage.

 So when Tiger and Elin got married, they did not make the 100% commitment that most other married people make on their wedding day.  They had wedding vows, but if they said  “I marry you with this ring, with all that I have and all that I am, for better or worse, for richer or poorer … ” they were not telling the truth.  Tiger and his attorneys were manipulating the terms of a very real institution that has been developed throughout the thousands of years that humans have been creating supportive, monogamous relationships.  By manipulating it with a Prenuptial Agreement, they were weakening it, not strengthening it.  It’s not surprising that Tiger may have found it relatively easy to depart from his marital vows.  He had made another (contractual) vow that conflicted with the marital vows. 

 As a result, Tiger and Elin were only half married.  Marriage requires total commitment.  A Prenuptial Agreement gives a person a “way out” of the marriage.  Without that total commitment there are bound to be marital problems and divorce.  It’s not surprising that Tiger and Elin ran into problems. Couples that depend on each other financially do not have the latitude to think about straying from the marriage.  It is actually a blessing in a marriage not to have “too much” money.

 What if Elin said to Tiger, “Yes, I will stay married to you, but only if we rip up the Prenuptial Agreement and be like real married couples.”  Yes, they would have risk and uncertainly if there is divorce. Maybe that’s a good thing.  If Tiger finally said “Yes, I will be married to you, completely”, then Elin and Tiger could start to be truly committed to their marriage without money getting in the way.  They would both be following the marriage vows, and their marriage could truly restart. 

 So Elin and Tiger, think for a moment about tearing up that Prenuptial Agreement and starting a real marriage now.  Say to each other (finally) “I marry you with all that I have and all that I am.”

Why “Contribution” is So Important to a Marriage

Recently, I was asked to present an evening workshop by an association of professional women on “How to Negotiate with your Spouse”. I was pleased and surprised that they invited a divorce lawyer to present on this topic (which I call, “How to Get Along with Your Spouse”), but it actually makes great sense. Who but a divorce lawyer is in a great position to see what happens when a couple cannot get along.

The association probably found me on the web through my work in Mediation to Stay Married (also known as marital mediation). This is an emerging field of mediations. As a divorce lawyer, I can see how a couples’ interactions are leading them to divorce. I can alert them to the problems, how they lead to divorce, and help them do something about it through mediation.

When we work on divorces with our clients, our clients tell us what went wrong with the marriage. The other spouse generally has another “take” on what went wrong. When you put the two versions together (reminds me of the 1952 classic Japanese film “Rashomon”) you can get a composite view of what went wrong. From this composite view you can “reverse engineer it”, to find out what needs to go “right” in the marriage in order for marriage to succeed.

At the beginning of my presentation to the professional women, I asked them to (anonymously) each write on a 3 x 5 card, a problem in their marriage or relationship, and something they find very annoying about the significant other. The women wrote assiduously with almost 100% participation. I think no one had ever asked them these questions, and they really wanted to unburden.

I used the answers as jumping off points in my presentation. I was not at all surprised that the great proportion of the responses dealt with their feelings of lack of contribution by their spouses or significant others. The notice of “contribution” is a legal term, and is greatly relevant in divorces. Sometimes lack of contribution is reality; sometimes it a perceived lack of contribution, and is not real.

“Contribution to the marriage” is an area where most married couples and committed couples find significant discomfort. It needs to be talked about by the spouses or partners, directly, often, gently, and with humor. The discussion will reveals a treasure trove of history, gender perceptions, culture, religion and family history that will be explored as the couple talks about the issue. The hope is that this discussion will lead to greater clarity, empathy, or appreciation, and maybe some practical changes in the balancing of work needed to make a household run happily and smoothly.

© 2009 Laurie Israel.  All rights reserved.   

 

Laurie Israel,  founder of the firm Israel, Van Kooy & Days, LLC  has a tax background and an interest in what makes marriages break down. She is on the board of the Massachusetts Council on Family Mediation, and is a board member and is active in the Massachusetts Collaborative Law Council.  She writes and presents on prenuptial agreements, mediation, marriage, and collaborative law.

When a Parent Wants to Relocate with a Child

We live in a very mobile society. People come to Massachusetts for their education and for job opportunities from all over the U.S. and foreign countries. This poses a problem when a spouse wishes to go back home  after a divorce– to their state (or home country) where their extended family lives and want to take the children of the marriage with them.  (The technical term for this is “removal”. )

The problem also comes up with job loss and employment opportunities for a spouse who has joint or primary custody of the children. It is a difficult problem for spouses to deal with even in an ongoing marriage. So when spouses are divorcing (or have already divorced), when the level of cooperation and good will may be at a lower point, it is especially difficult.

In divorces, I have seen the following permutations:

Both divorcing spouses decide it’s best to move to the city or country chosen by one. Or sometimes the primary parent spouse moves away with the children and without the other former spouse. Sometimes the non-primary parent moves away without the children. The decision regarding removal needs to be made gently, thoughtfully and carefully, with the utmost attention to the needs and well-being of the children.

It is important to have children near extended family, if possible. But it is also important for the children to be near both parents, if possible.  Sometimes a spouse needs to move to get  family support and help taking care of the children, or to earn a livelihood. No matter how you slice it, when a parent leaves permanently with children, it is a hard situation.

In cases where a parent has primary physical custody, a court may permit that parent with the child or children if he/she shows that there is a “real advantage” to the move. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 705, 706, 711 (1985). Under the real advantage test, “[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children’s best interests. In the analysis, the consideration of the advantages to the custodial parent still remains a significant factor in the equation. Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2005).   In cases that have gone to litigation on this issue, it’s a fairly high burden of proof to meet.

The American Law Institute’s Principles of the Law of Family Dissolution in Chapter 2 has also weighed in on the issue of removal. It asserts that “[T]he court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose”.   And the American Academy of Matrimonial Attorneys (AAMA) has issued a proposed Model Relocation Act, which in sections 405 and 406 articulates factors to be considered, and factors not to be considered when determining a contested removal. Interesting in the (short) list of what is not to be considered is whether the parent seeking relocation has said that he/she would not relocate if the removal petition was denied.

Because removal is such a difficult juncture for parents with close ties to children, removal issues are good topics to use alternative dispute resolution techniques to resolve, such as Mediation or Collaborative Law. They require the utmost in flexibility, good will, and clear thinking on the part of the parents, with capable assistance by attorneys or mediators.

Laurie Israel  is engaged in helping divorcing and divorced resolve their disputes in the most humane way possible.   She is joined in her practice of family law at the firm with Karen Van Kooy and Ronny Sydney.

Laurie Israel,  founder of the firm Israel, Van Kooy & Days, LLC  has a tax background and an interest in what makes marriages break down. She is on the board of the Massachusetts Council on Family Mediation, and is a board member and is active in the Massachusetts Collaborative Law Council.  She writes and presents on prenuptial agreements, collaborative law, mediation and marriage.

 

Collaborative Practice: A Marriage to the Divorce

There is definitely something very special about accomplishing a divorce through Collaborative Practice. This specialness is present for the attorneys, for the clients, and for the other collaborative professionals involved in the process. The word that immediately comes to mind is “transformative”.

The transformative nature of the process is created by several features of Collaborative Practice. One of these is dealing with each other with truthfulness. This leads to a transparency in the Collaborative process that transforms what might have ended up in nastiness into something else – a final, magnanimous, clear-eyed parting of one relationship (spouses) and beginning of another (ex-spouses, co-parents

Another feature that engenders a transformative result is the agreement not to litigate while in the Collaborative process. This is the so-called “Commitment Agreement”, a legally-binding pledge to work out the terms of divorce within the Collaborative Practice team, without resorting to litigation. Yes — the parties (or either of them) can choose to “opt out” and litigate their case (with other attorneys) at any time. But generally they don’t, and the case stays within the Collaborative process. As a result, the parties are provided with a sense of safety while they work out the practical and emotional issues relevant in their new circumstance of no longer being spouses. This is what Collaborative practitioners refer to as the “safe container” of Collaborative Practice. It is a net of safety that really works to let the parties work on their divorce with clarity and ease.

Within the container of the Collaborative process, the parties are able to discuss their divorce and the possible terms with freedom and truthfulness and in their own time. They are able and encouraged to express their own needs and fears. The Collaborative Practice team is there to assist them with knowledge about the technical aspects of divorce and to help in finding solutions. The team also assists in keeping the process from emotionally getting off-track.

It is the lure of this quality of divorce that brings clients and professionals to Collaborative Practice. As a lawyer working in this field for nine years, I have had occasion to ponder on what makes this practice so powerful and what makes it so prone to successful outcomes. The articulation that has been recently coming into my mind more and more, is that Collaborative Practice is essentially a ‘marriage’ to the divorce. That is not to say that the divorce process will take a long time (hopefully it will not), but that the parties are committed to working out the divorce together as the last ‘act’ of their marriage.

These are the parties, who, in most cases have been together for a long time, and have many connections – children, community, and financial – and a book of experiences to draw upon. Yes, these people are getting divorced, which means that they perceive that their marriage can no longer go forward. But many of our clients wish to go forward as friends and allies, and not enemies. That certainly makes sense, because at one time certainly (and probably for some years afterwards) these people loved, respected and cherished each other. So why not continue those feelings and sentiments at the end of the marriage? It actually is often possible, and Collaborative Practice facilitates this kind of transformation.

That is the beauty of the Collaborative process. It flows from the free expression by the parties of their truths, needs, and wishes. It is further strengthened by the Commitment Agreement and is nourished by the Collaborative professionals who are experienced and trained in handling the practical and emotional aspects related to the end of the marriage.

The feelings of satisfaction at the end of a successful case can be very rewarding. They include financial puzzles solved creatively, and respect and support shown by the spouses as they work through the end of their marriage. There can also be a sense of peace and calm as the couple embarks on their new separate lives, generally bringing with them family connections that will remain for a lifetime.
Copyright ©2009 Laurie Israel.

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