Can you ‘move on’ if your spouse gets Alzheimer’s Disease? Televangelist Pat Robertson weighs in.

Last fall Pat Robertson, who is an ordained Baptist minister and is well known for his syndicated program, the 700 Club, angered millions when he, in response to a viewer question answered during a taping of the program, stated that it is ok to divorce your spouse, should he or she suffer from Alzheimer’s disease, as long as the spouse receives custodial care, because the disease is like a death.  In other words, when your spouse gets to the point where he or she can no longer recognize you, it is ok to move on without a guilt trip.  What about the marital vows ‘in sickness and in health?’ or ‘until death do us part?’ exclaimed many in outraged response.  Personally, I wonder how he would answer a question regarding the morality of abandoning a severely disabled child as long as the child received custodial care.  Although this was medically advised not too many years ago, in 2012, even formulating such a question seems outrageous.

According to the Alzheimer’s Association, divorce does not typically occur when a spouse suffers from Alzheimer’s disease.  The reality instead is that the family rallies around the Alzheimer’s sufferer, and his or her caregiver spouse, as this is what marriage, family, and love are all about.

But what if a dementia diagnosis is given to someone at a younger age, for example, to a person in their 30s or 40s?  If I personally were to receive such a diagnosis, get to the point where I could no longer recognize my husband or children, and thus require 24-hour care, I would hope that my husband would have the opportunity to find someone to share his life and that my young children would have someone else in their lives to serve as their de facto mother. 

The reality is that divorce is not uncommon when a younger person receives such a tragic diagnosis, not chiefly because of the emotional needs of the spouse and children, but rather due to economic necessity.  I’ve seen firsthand the difficult choices that have to be made where one spouse has dementia, requiring 24-hour care, the healthy spouse is still working and years away from retirement, and there are minor children still living at home.  In such a situation, divorce can be the only alternative to what will most certainly be financial devastation for the family.  Here, with arguably very limited exception, the dementia sufferer is not ‘abandoned’ as the family, often the spouse, will most likely remain actively involved with care decision making for the dementia sufferer.

In short, although I truly believe in the sanctity of marriage, I also believe that life is not always black and white.  As such, we need to be a community to those dealing with the difficult choices that a dementia diagnosis brings, whether the afflicted is age 42 or 82. 

I welcome your thoughts.

 

Are you ready?

Not long ago an obituary in the Seattle Times caught my eye:

Mary Wechsler, prominent Seattle attorney and former president of the King County Bar Association, died of Amytrophic Lateral Sclerlosis (Lou Gehrig’s Disease) on January 21, 2011 at the age of 63.”

Although I don’t recall meeting Ms. Wechsler, I did recognize the photo included with her obituary.  Thus, I may have attended a meeting with her at some point or at least previously seen her photo in a local legal publication.  Ms. Wechsler’s obituary goes on to state all of Ms. Wechsler’s professional accomplishments and recognitions received during her impressive career, some of which I have achieved, but on a more modest, smaller scale (for example, although I have never served as the president of the King County Bar Association, I am presently the chair of the King County Bar Association Guardianship and Elder Law Section).  Thus, her death is a little close to home.  If it isn’t enough to lose such a bright star too soon, the following paragraph of her obituary caught my attention:

Mary was diagnosed with Amytrophic Lateral Sclerlosis in late 2009 and retired her law practice in April 2010.”

Thus, Ms. Wechsler passed away just over a year after her diagnosis and a mere nine months after her retirement.  Her death clearly came quick (perhaps she utilized Washington’s right to die laws, which is only speculation on my part and is clearly a topic for another blog).

It made me wonder, if I received a medical diagnosis which would ultimately be fatal, would I be ready to go?  Spiritual issues aside, my mind immediately goes to all of the matters that I want to get in order prior to my death including, but not limited to the following: better organizing my financial records; updated guardian provisions for my children in my Will; adequate life insurance, especially now that I have incurred the additional liability of a commercial building for my law practice; fully funding the revocable living trust that my husband and I created in 2000; an ethical Will for the benefit of my children , my way of expressing to them my values and wishes for their lives; a letter written to my nominated guardians in which I would express the values and opportunities I want my children to have prior to their obtaining the age of 18; and putting in writing my periodic thoughts regarding how I would like to be memorialized upon my death.

Those issues aside, am I ready should I become disabled?  In other words, do I have adequate disability insurance, long-term care insurance, powers of attorney, and a current health care directive?  Honestly, I would have to say that presently I do not.

As the cliché goes, the cobbler’s children are [often] without shoes.  In other words, believe it or not, it is possible for an estate planning attorney to have incomplete planning, clearly the case for me.  It is all too easy to table such important matters as life gets in the way.  Regardless; I want to be accountable to my family, clients, and friends.

Thus, please look for updates from me in future blogs as I move forward with putting these affairs in order.  That way, if the unthinkable happens, I will have done everything possible to not unduly burden my family and will hopefully leave few, if any, loose ends.  My hope is that you will be inspired to do the same in the process.

 

The Most Precious Gift

Have you ever had the heartbreaking life experience of watching a loved one languish while waiting to receive a donated organ that may never arrive?  According to the organization ‘Donate Life Today,’ someone is added to the national organ transplant waiting list every 13 minutes and, on average, 18 people die in our country each day from the lack of organs available for transplant.  Organ donation is a great way to make something good come out of a tragedy.  A recent example of this is when the parents of the youngest victim of January’s Tucson, Arizona shooting donated her organs which saved others’ lives.

In our state, it is easy to indicate you are an organ donor when obtaining or renewing your driver’s license.  By doing this simple gesture, you become a member of a donation registry.  You may not be familiar, however, that it is possible through ‘Donate Life Today’ to specify whether you would want your donation to be used for transplant, medical research, or both, which can be an important distinction for some religions.  In addition, you can specify which organs or tissue you would be willing to donate.

Becoming part of the registry or making changes to your donation wishes can easily be done by visiting the website www.donatelifetoday.com or calling the toll-free number (1-877-275-5269).  It is also possible to add minor children to the registry through the website or toll free number.  The website is an excellent source of information regarding organ and tissue donation.

Although I don’t wish on any family the tragedy of the untimely demise of a loved one due to cardiac death or brain death, I hope that you will agree that it be wonderful to have the opportunity to have something good come out of such a horrific situation, the gift of life to others.

I encourage you to look further into organ and tissue donation.  Please let me know if you would like additional information and I will gladly send you one of Donate Life Today’s informational brochures.

 

Minor Children and Life Insurance Beneficiaries

I have needed to clear my conscience about something for some time.  Up until the last few years, I have given clients with minor children poor advice with regards to how to set up beneficiaries of life insurance policies.  My advice had always been to name your spouse first and, for a contingent/secondary beneficiary name the “estate.”  This way, I explained, the Will would control with regards to how the insurance proceeds are to be dispersed to minor children.

This is the problem.  If the estate is the beneficiary of life insurance, the proceeds are no longer “creditor free,” which is one the biggest benefits of life insurance (it passes to the intended beneficiaries free from any of your creditor claims).  If the estate is the beneficiary of the life insurance, then the life insurance proceeds are added to the general estate.  All of the general estate is subject to creditor claims.  There are many ways in which there can be creditor claims against an estate 1) outstanding credit card bills; 2) medical bills arising from a long illness or lack of health insurance; 3) a suit or cause of action filed by a third-party; or 4) general hard times caused by lack of employment, to just give a few examples.

If the estate should not be the beneficiary of life insurance policies, who should the beneficiary be?  Here are some options:

1.       Name the person whom you presume would be the guardian of your minor children.  This is a VERY BAD idea.  By naming a third party to directly receive funds on behalf of your children, you are creating a moral obligation that the individual will actually apply the funds for the benefit of your children.  Obviously, even if the individual told you now that he or she would do just that, such a promise is not enforceable.  Also, that individual’s financial circumstances could be drastically different at the time of your death and he or she could be desperate enough to rationalize using the money to bail them out of the hardship.  Another possibility is that the individual could be incompetent at the time of your death.  That individual’s fiduciary (guardian or attorney-in-fact under a power of attorney) could have no idea of the prior moral agreement.  Even if they did, their obligation would not be towards your children.  On the other hand, even if the individual followed through by using the funds to provide for your children, that could create gift tax complications for him or her, should any of your child receive more than $13,000.00 from your named beneficiary.  In short, this arrangement is a VERY BAD idea.

2.      Name the minor children themselves as the beneficiaries.  This is a BETTER idea.  However, no insurance company will issue a check payable to a minor.  Thus, someone will have to petition the court on behalf of the minor(s) for the appointment of a guardian to receive and administer the funds for the minor’s benefit.  This process does not happen overnight and takes attorney fees to accomplish.  In the meantime, the insurance company sits on the funds and the funds are not available for the support of the children.  Also, when the child turns 18, the remaining insurance money is his or hers.  Have you ever seen a lot of money in the hands of an 18 year old?  It is generally a BAD idea.  Thus, although it is BETTER to name your minor children as the beneficiaries of life insurance, it is not the BEST idea.

3.      Name the Trustee of the testamentary sub-trust which you have created for your children’s benefit under your Last Will.  This is the BEST idea.  Washington law permits you to name as the beneficiary of your life insurance the trustee of any trust which you have  created under your Last Will.  Thus, if you have minor beneficiaries, I recommend that the beneficiary designation be changed as soon as possible to read similar to this:

“100 percent (100%) payable to Bill Smith, Trustee in the Last Will and Testament of the insured or his successor(s) in trust for the benefit of Catelyn Johnson and Aiden Johnson, minor children of the Insured.

LIFE INSURANCE PROCEEDS.  My trustee shall collect the proceeds of any life insurance policy for which my trustee is the beneficiary, and shall hold those proceeds under the terms of this instrument.  Payment to my trustee shall be a full discharge of the insurance company on account of the policy, and the insurance company shall not be responsible for the proper discharge of the trust.  My trustee has no duty to begin collection proceedings or litigation to enforce payment of any life insurance policies until reasonable provision has been made to indemnify my trustee for all anticipated expenses and liabilities.  Any proceeds of life insurance, retirement benefits, annuity payments or other benefits which are made payable to the Trustee named in this Will shall be allocated to the specific sub-trust indicated in the beneficiary designation, or if none, as if the proceeds or benefits had been a part of my estate at the time of my death.”

This trust is a “sub-trust” because it is created under your Will.  It is a “testamentary trust” because it is created upon your death.  By having the Trustee receive the money directly, the Trustee can immediately apply the money for the benefit of your children according to the directions you have provided to the Trustee in your Will.  In your directions, you can also select how old your children will be when their trust comes to an end.  In most cases, I recommend to clients that it be at the age of 25.  This way the Trustee can make sure the children get through college and hopefully the children are much more mature than they were the age of 18.

In order to name the Trustee under your Will, you of course must first have a Will.  A Will is absolutely essential especially if minor children are involved.  I am happy to help with that process.  Please do not hesitate to contact me if you have any questions regarding minor children and life insurance beneficiary designations or Wills.

 

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