Do You Have a Living Will?

Clients come to my office to talk with me about planning for incapacity and death.  These are hard conversations to have, even in an elder law attorney’s office.

Of all the documents that I prepare, the Living Will, gives my clients the most trouble.

This document, a dying declaration, states what kind of end-of-life care you want when there is no medical probability of recovery.  Most people do not want to be kept alive artificially.

But what does that mean?  Do you want a feeding tube?  Hydration?  Blood transfusion?  How far are you willing to go?  And what about dementia?  Do you want to be force fed when you no longer have hunger or the ability to feed yourself?

And who should be your advocates or decisions makers?  A family member (who might not be willing to let you go) or a medical person that you trust?

Knowing your legal rights and putting them in writing will help ensure that your wishes are met.

An elder law attorney can help guide you through this difficult conversation.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

END OF LIFE OPTIONS

One of the services that I offer my clients is a Living Will. This document is a legal declaration of what type of care your wish to have if you are in the end stage of life and there is no medical probability of recovery.

Many of my clients struggle with this document-typically it is because they cannot decide whether they would want a feeding tube or artificial hydration at the end stage.

Here are some common myths that contribute to this difficult decision along with the response of Tani Bahti, nurse:

Myth: If people don’t eat, they should get a feeding tube or they will starve to death.

The needs of the body and its ability to process food changes in the final months of life.  People do not die because they are not eating, but rather they do not eat because they are dying.  Complications due to forced feeding and the use of tube feedings can actually hasten dying. 

Myth: Not drinking leads to painful dehydration.

Natural dehydration is comfortable and releases endorphins which promote comfort. Unlike in a healthy person, providing artificial fluids near the end of life may actually increase discomfort.  Natural dehydration results in less chance of nausea and vomiting, swelling, and lung congestion.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Most estate plans include advance directives that state your wishes for health care and end of life decisions.  But, as some families are finding out, these advance directives may not be specific enough for certain diseases, such as Alzheimer’s.

Without a specific directive, some families facing this issue have had to go to court.  The results are usually not favorable for the families.

One such case recently occurred in Oregon.  In this case, the Alzheimer’s patient had previously signed an Advance Directive after being diagnosed with early onset Alzheimer’s disease.  She wanted to prevent her life from being prolonged once the disease became severe.  Her Advance Directive stated that she did not want to be fed through tubes and other mechanical assistance.

However, she was being kept alive by spoon feeding by her nursing home caregivers.  The woman’s husband went to court arguing that his wife would not want to be kept alive in this manner and that her acceptance of food was an automatic response and not a change in her wishes.

The Court found against the family.  The judge said she would not order the facility to stop spoon feeding Nora.

“It’s not a happy decision for me, said the Judge to the husband.  From what you have told me, your wife would hate this.”

The judge went on to say that the advance directive form only speaks to artificial nutrition.  It does not specifically mention food or water presented by hand.

The Law Office of Debra G. Simms can prepare an Advance Directive specifically for dementia and dementia-related diseases such as Alzheimer’s.   This new advance planning document allows sufferers of such diseases to record the specific difficulties associated with these illnesses and to detail what type of health care you want to be followed once you are no longer able to make your own quality of life decisions.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

The Role of an Estate Planning Attorney

Planning for end of life is a difficult but necessary process.  Part of this planning is the creation of a legally binding estate plan that dictates your wishes and appoints certain people with the responsibility of carrying out those wishes.

Using an experienced estate planning attorney is advised. The attorney can walk you through the process from start to finish, prepare the documents, and make sure that the documents are properly executed.

Another advantage of using a professional estate planning attorney is to ensure that your real estate and other assets are properly titled to be certain that legal title is clear and assets can be transferred to your selected beneficiaries. This process can include advising on deeds, pre- and post-nuptial agreements, and marital settlement agreements after divorce.

An experienced estate planning attorney can also advise you on other end-of-life choices, such as financial and medical directives, organ donation, disposition of remains, and similarly important decisions. Without an estate planning attorney’s assistance, you may find yourself setting your family up for more hardship as the result of poor planning.

An attorney can also advise clients about how to best provide for beneficiaries with special needs, educational requirements, or other considerations. The attorney can also create a plan for meeting philanthropic goals and include charities or other organizations in your estate plan.

Planning ahead is important for everyone, no matter how large or small the estate. Using an experienced estate planning attorney will ensure that your plans can be carried out.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.


Many of us tend to procrastinate about making hard decisions.  Unfortunately, with estate planning and elder care, this can have dire consequences.

Recently, an 80 year old lady came to see me about doing her Will.  She was clear in her mind about who she wanted to leave her money to when she died and who should take care of her finances if she became too ill.  And, she knew what kind of care she wanted if she could no longer live alone.

I was hired to do a basic Estate Plan for her – Will, Durable Power of Attorney, Health Care Directive, and Living Will.  I prepared the documents and called her to come in to sign.  No Answer.  Next day, No Answer.

It turns out my client had a stroke and was unlikely to recover.  She had no legal documents in place to authorize any of her children to handle her finances or make decisions regarding health care.  The children could not agree, and a guardianship case was opened in court while my client remained in the hospital unable to communicate.

This is an all too familiar story in my Elder Law practice.

Why do people procrastinate about these important planning tools?  It’s simple:

  • No one wants to think about mental incapacity or death.
  • No one likes to pay attorney fees.
  • No one likes to expose their personal life to another person, even an attorney.
  • No one wants to give a child the authority to “put them in a home”.
  • Sometimes it’s not easy to decide how to divide your estate.

It’s wise to start your estate planning early.  Here are some top reasons:

  • The top reason, of course, is my 80 year old client.  You might lose your ability to sign documents.
  • Like my client, you might lose your ability to communicate your wishes to your family or doctors.
  • Keep harmony among family members – my client’s children could not agree what to do – they went to court!
  • You might need someone to handle your finances if you cannot.

After watching my client and many others like her, I know how important it is to plan ahead.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

COMMON QUESTIONS ABOUT ADVANCE MEDICAL DIRECTIVES

  1. Is a designation of health care surrogate the same as a living will?
  • No. A healthcare surrogate is able to make decisions about the medical treatments which are not life support; such as medication, tests, choice of hospitals and physicians.  This allows someone whom you have appointed to express your wishes if you are unable to do so.
  • A living will, on the other hand, applies only to life support treatment for a terminal condition from which you are not expected to recover.
  1. What are some of the other things a health care surrogate can do?
  • Apply for health insurance
  • Sign consent forms
  • Provide information and records when needed
  • Prevent or stop unnecessary tests or medication

If you need advice on estate planning or advance medical directives, call the Law Office of Debra G. Simms today at 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

A Dementia Living Will is specifically designed to address advance care planning in cases of dementia.  In order to be effective, the document must be combined with a Designation of Advance Healthcare Surrogate and a Living Will.

For many people with dementia, there can be a number of years between losing the ability to make medical decisions and the point at which a living will would take effect.  Multiple medical issues can occur during those years, and a lack of information leaves your healthcare surrogates unprepared.

The purpose of the Dementia Living Will is to provide information to your health care surrogate in case you develop dementia.  It is intended to serve as a communication tool so your surrogate is aware of your medical choices regarding medical issues that are common during dementia.

The document can be completed by anyone over the age of 18 and is particularly helpful for those who are concerned about a diagnosis of dementia in the future and those individuals who have been diagnosed with early dementia are still capable of making their own medical choices.

Disclaimer:  If properly drafted and executed with witnesses the document should comply with Florida law.  However, with any new legal document, there may be some legal issues.   In the case of any challenge to legality, a signed and witnessed documents will provide a presumption of “clear and convincing evidence of the principal’s wishes”.

The Law Office of Debra G. Simms now offers a Dementia Living Will.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Getting Your Affairs in Order

Making healthcare decisions for yourself or someone who is no longer able to do so can be overwhelming.  That is why I recommend that my clients make decisions and arrangements while they can participate in legal and financial planning.

I have created a checklist to ensure that your healthcare and financial arrangements are in place before a serious illness or a healthcare crisis.

  • START DISCUSSIONS EARLY with your family and friends.
  • CREATE DOCUMENTS that communicate healthcare, financial management, and end of life wishes and instructions. Get the legal advice needed to do so.
  • REVIEW PLANS REGULARLY, and update your documents as your circumstances change.
  • ORGANIZE YOUR PAPERS IN ONE PLACE. Make sure a trusted family member or friend knows the location.
  • MAKE COPIES OF healthcare directives for all the physicians you regularly see.
  • REDUCE ANXIETY for yourself and your loved ones by making funeral and burial arrangements ahead.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

This week is National Health Care Decision Week.  It is a perfect time to think about making sure you have someone who can legally make health care decisions for you if you become ill and lack the mental capacity to make your own decisions.

In Florida, this is done with a legal document called an Advance Medical Directive.  My office routinely prepares these documents for clients and they include the Designation of Health Care Surrogate, the HIPPA Release, and the Living Will.

These documents should give the person you name as your surrogate the authority to obtain your medical information and make any and all health care decisions for you in accordance with your values and moral beliefs.  The Living Will allows you to make decisions about withdrawing or withholding life-sustaining treatment at the end of life when there is no probability of recovery.

These documents are state-specific and it is important that you have Florida documents if you are a new resident of Florida.  Documents should also be updated if your decisions change or if you need to name new surrogates.

You should provide a copy of these documents to each of your doctors and you should also give a copy to anyone who would likely be called in an emergency.  I also recommend that you take a copy with you when you travel.

To minimize any confusion or doubt about your wishes or the surrogate’s authority, the documents should be as specific and explicit as possible.  One size does not fit all.  Do not use online or form documents.  They may not be valid in Florida and even they are valid, they might not contain all the language you need for your specific wishes to be carried out.

Finally, your situation might be unique.  I can customize your documents to address any concerns you might have about particular procedures, such as artificial hydration, feeding tubes, chemical treatment, and invasive diagnostic tests.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

National Health Care Decisions Day is April 16th.  This day is designated by the National Hospice and Palliative Care Organization (NHPCO) to inspire, educate, and empower the public about the importance of advance care planning.

Advance care planning involves making future healthcare decisions which involves selecting an agent to express your healthcare decisions if you are unable to speak for yourself, and also allows you to express your preferences and clarify your values.

Advance care planning starts with “The Conversation” – talking about your health care concerns with your loved ones, health care providers, and even your friends.  These conversations will relieve your loved ones with the need to guess what you would want if you are facing a medical crisis.

Next, you need to complete your Advance Directives.  In Florida, these are called Advance Health Care Directives, HIPPA Releases, and Living Wills.

These documents are state-specific and are designed to meet each state’s statutory requirements.  If your legal documents were prepared out of state, you should meet with a Florida attorney to discuss whether new documents should be completed.  The documents will do you no good if your doctor or hospital will not honor them.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

 

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

 

 

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