Arizona Elder Lawyer

Right to Control Our Pain as Terminally Ill Patients ~ Arizona Legislation 2007 ~ HB 2357

            In this great country of ours, we have a right to control our medical decisions with our doctors.  To a point.  We have the right to refuse both life-saving medicine and life-saving procedures.  We can refuse to put anything in our bodies, on our bodies, or near our bodies that might heal our ailments.  And, we can also give this right to our loved ones when we cannot communicate our wishes.  We simply have to put it in writing.

            However, we do not have the right to control our pain.  If we are terminally ill and in pain, we are forced to live our last days with undeniable suffering.  We place our loved ones in the extremely difficult position of asking them to help us die.  Our suffering overtakes our minds so completely that we care more about relieving our pain than the consequences which our loved ones would face if they actually helped us get relief.

            In Arizona, we have the right to execute Medical Powers of Attorney, which allow others to make medical decisions for us when we cannot communicate.  We have the right to execute Living Wills, which clarify our wishes for care in the event that we are terminally ill, in a persistent vegetative state, or are in an irreversible coma.  And we have the right to execute Mental Health Powers of Attorney, which allows others to make mental health care decisions for us when we are incompetent.

            But, the Arizona Legislative branch controls how much pain we must suffer if we are terminally ill.  You see, they know better than we do about how much pain and suffering we are forced to endure at the end of our lives.  They believe that they are protecting us from ourselves.  And they see it as their religious duty to protect us from ending our undeniable godforsaken suffering.  Even though we are terminally ill, going to die in the next six months, and have made an informed decision with our doctor and family, we cannot control our pain.  We must lose all of our dignity and suffer unimaginably, because they refuse to allow a hearing on HB 2357.

            This is a bill which, if passed, would allow any competent adult resident of Arizona to make a written request for pain medication, at least three months before the medication can be prescribed, if diagnosed with a terminal illness.  These are fully informed decisions which are made by the individual requesting the relief and her doctor. 

            Apparently, Republicans refuse to allow this bill a hearing, the next step in making this law.  There are some who wrongly believe that it is a license to kill people willy nilly.  This is ignorant and self-righteous.  Anyone who reads the text of the bill cannot make that statement with any legitimacy.  These same people claim that these prescriptions could be abused or recommended to those who are deemed unworthy of living.  Again, this shows the short-sighted nonsense anyone will say to look good in print.  A PERSON MUST BE TERMINALLY ILL WITH SIX MONTHS OR LESS TO LIVE IN ORDER TO RECEIVE A PRESCRIPTION UNDER THIS LAW. 

            I am a lifelong Republican.  I do not understand what the Arizona Republican caucus is thinking about when they deem it their duty, rather than each individual’s right, to be in the business of denying relief from pain for terminally ill patient’s last days of their lives.  Who do they think they are to tell Grandma that she must suffer undeniably degrading and excruciating pain at the end of Grandma’s life?  That Grandma must suffer so deeply that her family and friends will be haunted for the rest of their lives by her agony and torture. 

            This bill deserves a hearing.  Most Arizonans believe they should be able to control their pain with their doctor’s advice and family’s input at the end of their lives.  This bill has been introduced annually since 2003.  The Republicans refuse to allow a hearing.  And they wonder why the voters refuse to give them a pay raise.  They should listen to the will of the people rather than certain religious “leaders.”  This country was built on individual freedoms and the right to be left alone.  Apparently elected Arizona Republican’s would rather have the government be involved in everyday medical decisions which should be left to doctors and patients, because they are protecting us from ourselves.

Credit Card Theft and Fraud

We read about this all the time.  We hear that this sort of thing happens.  We don’t believe it will ever happen to us.  It is rampant.  And, guess what?  The elderly are being targeted more and more as vulnerable in this area.

Just yesterday I was speaking with a fellow in his seventies or eighties about his recent experience at the Cheesecake Factory in Chandler, Arizona.  I was at that meal.  There were about a dozen of us there.  We had a great time.  The service was good.  The food was excellent.  But, the aftermath was extremely disturbing.

            This fellow paid for our meal.  He was going to be reimbursed and thought nothing of paying for our lunch with his credit card.  About an hour after leaving the Cheesecake Factory, he received a call from the Fraud Department on his credit card.  Someone had run up hundreds of dollars in fraudulent charges on that card, which he rarely uses.  The first charge was $1 so that the thieves would know the card was still good.  That was followed by multiple hundred dollar charges.  Now, granted, he ended up not being responsible for any of the charges and cancelled the card immediately.  However, the aggravation and vulnerability of being a soft crime victim after such a lovely gathering was completely unsettling.

            I see this as the new way to mug people.  And quite honestly, the behavior of these “young entrepreneurs” repulses me.  I used to work at a couple of restaurants a long, long time ago.  It is pretty simple stuff: either the wait staff or the host staff ring through the credit card charges.  The managers have access to those receipts as well.  Everyone carries a cell phone these days.  These phones have cameras and some cell phone owners will get jobs in restaurants where they have access to numerous credit cards.  Then they will photograph numerous credit cards, and text message these photos to their scumbag criminal partners during their shift.  “It wasn’t me.  I was at work.”  Scumbags.  Thieves.  Such repugnant behavior.  Shame on the Cheesecake Factory in Chandler, Arizona for not monitoring their employees’ behavior better and for hiring such criminals in the first place. 

            This sort of thing happened to my mom a couple of weeks ago.  She, too, is a bit more seasoned and ripe for these scumbags to steal her information.  I suppose it is comforting that she wasn’t mugged in the parking lot of Coldstone Creamery again, or the Bank of America parking lot, like my grandma was a few years back.  But, it still makes me angry that she was victimized in this way by some loser.  Thankfully, she is very diligent in monitoring her credit card activity online and found these fraudulent charges almost immediately.

            I think these scumbags are targeting older people because they don’t think these folks are savvy enough to check their accounts online regularly.  And, they also don’t have the intelligent foresight that credit card Fraud units will make a call immediately on an irregular charge. 

            My point in this post is to warn people, once again, to be careful with your credit cards.  If possible, watch the card when you hand it to someone else.  Go to the station in the restaurant or store with the card for the swiping of it.  Then get it back immediately.  And, monitor your accounts online regularly so that you can catch any charges that are not yours.  Finally, make a loud stink about this sort of thing if you are a victim and know where the stealing occurred.  Shame companies like the Cheesecake Factory in Chandler, Arizona into better business practices.

Hazards of Storing Legal Documents in a Safety Deposit Box

In the Estate Planning area, many lawyers disagree about where to store your important documents.  Some lawyers feel that wills, trusts, and other very important documents should be stored in a safety deposit box.  I firmly believe that this practice is a very bad idea and should be used as a last alternative only.

The reasons most often given for storing documents in a Safety Deposit Box include 1) safety from house fires and floods, and 2) privacy. 

Let me ask you a few questions.  How often do house fires occur?  What are the odds of total destruction caused by a house fire?  Seriously.  The odds are exponentially higher if there is a smoker in the house, you live in a known fire zone or high wind zone, or you misuse appliances for heating purposes.  Major house fires are more likely to occur when there are no working smoke detectors or fire extinguishers available.  You personally have great control over the odds of a house fire occurrence and the resulting damage by your personal choices.

            How often do floods destroy homes?  This too is fact specific.  If you live in a flood hazard area, obviously your risk increases.  If you live in a cold weather area, the odds of your pipes freezing and bursting increase, but this sort of flooding will not generally destroy a house.  You will generally know if you are at a greater risk for flooding based upon where you live.

            If your home is at a greater risk for fire damage or flood damage, what do you do with the rest of your very important papers?  Where do you keep your tax returns?  Your insurance papers?  Your bank and investment statements?  Are they in a safe place?  Are they really?  If the answer is yes, then your legal documents are likely safe there as well. 

            If privacy is the issue, I ask again, where do you keep your other very important papers?  Aren’t they just as valuable to safeguard?  Do you have them in a drawer?  In a shoebox?  In a box in the closet?  Bank statements and the like are more valuable to a thief or snoop than your will or trust documents are.  A thief can clean out your bank accounts with the information on your statement.  True, a will or trust document can be destroyed by a disgruntled family member, but, well, they too are likely to clean out your accounts while you are living.

            Why do I think safety deposit boxes are a bad place to keep very important papers?  Well, for starters, if the signatory is not able to open the box, it can be extraordinarily difficult for anyone else to access it.  Furthermore, many people are so private that their families do not have any idea they even have a safety deposit box.  The most important documents you have may never be found because no-one knows what bank or branch that little key goes to. 

I think these papers should be easily accessible because the odds of an emergency happening, where quick access to medical directives is vital, is more likely to occur, in my opinion, than a house fire or flood.  In fact, a year or so ago, a friend who was traveling had me go to her home, enter her closet, open her home safe, and remove her husband’s medical directives.  I faxed them to her.  He died days later.  She became a client at that point.  I would not have been able to get into her safety deposit box and neither would anyone else.  She needed those papers immediately and trusted no-one else to get them to her. 

            I am a firm believer of having a house safe.  These can be bolted down in plain sight so that it would be darn near impossible to steal them.  They can be in ground or in a wall and covered so that only those you want to know they exist will know.  They can be fire safe, waterproof, and more accessible than any bank vault.  In home safes are private and a worthwhile investment.  They can also be a vital part of safekeeping important documents and other valuables.  I urge you to consider these as a much better alternative than a safety deposit box.

Beneficiary Deeds

            Some lawyers think these are the best way to handle real property transfers at death.  Others, like me, completely disagree.  I believe they are short-sighted and harmful when used as the sole method of estate planning.  I do feel that they are appropriate to use when dealing with a financial institution that can’t seem to grasp the realities behind revocable living trusts and they are to transfer real property to the trust upon the death of the owner.

            What are the drawbacks to using these as a way to transfer the bulk of an estate?  There are so many.  It really does depend on the client situation.  I will only touch on a few.

            Some of the trickiness comes up with the rest of the estate.  Who is going to pay for the funeral?  For the last illness?  For the bills that may have piled up during the last illness?  What about the mortgage that is attached to the real property?  Are there any property taxes that need to be paid?  What about estate taxes?  What if there is a lawsuit because the deceased created havoc on their way out, whether intentionally or not? 

            What if the real estate is deeded by way of a beneficiary deed to multiple people, say, all the kids who are now adults and cannot stand each other?  Or live in different states?  Is that really a good idea?  Oh, I know.  A lot of people think that death brings the kids back together and they will get over their silly spats.  Think again.  Death brings out the worst in people. 

            What if there are three beneficiaries and one of them decides to move in permanently?  Do the other two get to visit?  Who pays for the upkeep or maintenance when there is a disparate use of the property? 

            What if the three beneficiaries actually like each other and agree to use the property as a vacation home and can actually agree with regard to the division of time.  But, wait a minute.  They cannot agree to whether the place needs to be maintained with fresh paint or new carpet.  Or maybe they can agree to the maintenance.  But they simply cannot agree to the color of the paint or what type of carpet it should be. 

            What if they actually can agree but one of them never has any money to pay for any of these maintenance items?  Or the property taxes?  Or the water bill?  Seriously, why would you put people through this? 

            An estate plan should not consist solely of a beneficiary deed.  It is short sighted and has the real potential to be messy.  Trusts and wills clarify with specificity who will be the decision maker, who is in charge of paying expenses that are due, and who gets the benefit of the assets after liabilities are taken care of.  Beneficiary deeds do none of these things.  Do your loved ones a favor.  Don’t be cheap.  Get to a lawyer who knows what they are doing and get a complete estate plan in place.  You have worked hard all of your life to accumulate your assets.  Why would you want to short change your heirs when they are grieving?

Time Share Investments

These can be a really good thing.  My best friend swears by them.  However, she is in her thirties and buys them from EBay at a fraction of the original purchase price.  And, she and her family actually use them. 

            An estate planning client came by the other day with the good news that she and her husband, both in their seventies, had just purchased another Time Share.  This one was in Oceanside.  They were visiting the city over the Thanksgiving holidays and went to the obligatory one hour informational tour.  Right. 

            They were subsequently strong armed into signing the dotted line on an investment of over $20,000 which they neither needed nor wanted.  They signed to get the heck out of there.  They had the usual slew of people come “talk” to them and weren’t allowed to leave until they said “yes.”  Personally, I think this is outrageous behavior by the sales people and the companies they represent, and the behavior should not be allowed by any reputable company. 

            The contract allowed my clients to cancel it within seven days.  Indeed, they attempted to do just that.  One stated cancellation method was to contact the sales office.  They sent a timely email to the sales person canceling the contract.  No acknowledgement or refund.  Another stated cancellation method was to send a letter.  They sent a timely certified / return receipt letter to the address listed.  No acknowledgement or refund.  A third stated cancellation method was to fax a notice to a certain number.  They attempted to send a fax on numerous occasions.  One finally went through after many, many busy signals.  It too was timely.  Still, no acknowledgement or refund.

            One threat letter from their lawyer resulted in no acknowledgment, but my clients most certainly received their refund within 24 hours of my sending the letter – in all three stated manners.  I think companies who treat people this way should be acknowledged publicly.  This particular company is Fairfield Resorts and the property address is 333 North Meyers Street, Oceanside, California.  Maybe this was a fluke.  After all, these are the holidays.  But, maybe this wasn’t a fluke.  After all, my letter didn’t go out until three weeks after my clients’ attempts to cancel the contract.

            Be very careful when dealing with these time share sales.  Some of the companies are really quite good.  It is just a shame that this sector of companies does not police themselves better.  The bad behavior by one gives the entire industry a bad name.

Do Not Call List for the Deceased

            We all get junk mail solicitations daily.  It is annoying to have so much of our mailbox filled with undesired nonsense.  But when we lose a loved one the last thing we need is to receive solicitations in their name.  Receiving these can be upsetting.

            The Direct Marketing Association (DMA) is supporting a list where a deceased person’s name can be entered and the solicitations should be stopped within a short period of time, generally within three months.  The information needed to remove your loved one from mass market targeting includes their name, address, phone number, and email address.  Here is a link to the DMA list site.  

They do require a credit card charge of $1.  This is to leave a paper trail in case the list is used in an abusive manner against the living or otherwise used improperly. 

There are at least 5,000 organizations that have access to this list.  These organizations are required to remove the names from their system.  If the organizations abuse the information gleaned from this particular list, they would be removed from the association. 

            Please forward this information to anyone who has recently lost a loved one.  It is easier to use than calling these organizations directly.

Elder Suicide and Arizona Law

    

            I am not a proponent of suicide.  I do not condone it.  I accept that it is out there and believe that suicide amongst the more seasoned population is more problematic than society realizes. 

            The other day started with a phone call from someone I did not know.  I was asked to explain the Living Will of the spouse of the caller.  The document named the caller as the decision-maker for the spouse who was currently in the ICU wing of a hospital.  This patient took a handful of painkillers the day before because the physical pain was so great that the person could no longer take it.  Obviously the attempted suicide failed.  Both persons were now in great emotional turmoil.

            The two legal issues that stood out in my mind were 1) this Living Will is ten (10) years old and if the doctor does not like the spouse, the doctor may ignore this document.  There are two estranged adult children from a previous marriage who would make things difficult during this time simply because they could.  If they knew the patient was in the hospital.  Living Wills MUST be re-executed at least once every five years or they are considered stale and invalid. 

And, 2) this should never have happened.  Doctors should be allowed to treat their patients for their medical needs without the threat of going to jail.  Arizona Legislators are supposed to do the will of Arizonans.  The majority of Arizona residents believe that physicians should be allowed to legally prescribe a lethal dose prescription.  Yet the Arizona Legislative branch will not allow a bill of this nature to have a hearing and the bill dies every year.  Currently HB2313, which requires two doctors to confirm that death to the patient is expected within six months before a prescription of this sort is written, has been given its own lethal prescription.  Republican Representative Doug Quelland, Phoenix, will not allow a hearing for this bill.

            The Arizona Legislative Branch is supposed to be serving the people of the State of Arizona.  They instead force their morals upon the residents.  Funny thing is that two of the most “powerful” lawmakers in the Arizona Legislation have their own moral issues.  One has been accused of quieting down the victim of a sexual predator and another has a son who has been accused of physically harming / hazing others at camp.  Strange.  And reprehensible. 

            Please contact your legislators and urge them to allow a hearing on this bill.  Our parents and grandparents should not be forced to live with pain that they can no longer tolerate.  They should have the right to make medical decisions with dignity, comfort and their doctors’ counsel and care.

Understanding Elder Law

Elder Law is the professional focus on issues which seniors (generally defined as age 50 and over) are faced with regularly.  This area of practice is a unique niche because a lawyer must have a broad range of legal knowledge coupled with compassion and a desire to improving the lives of seniors.  The focus is not just on legal issues, but, rather, it is holistic by addressing legal, medical, financial, social, and family dynamics issues.

Legal planning includes executing or updating wills, trusts, living wills, medical power of attorneys, mental health power of attorneys, and tax planning.  It can also include conservatorship, guardianship, and probate needs.  People have unique histories, circumstances, and goals, so planning must be individualized rather than implemented on a cookie-cutter approach. 

Financial planning not only covers charitable giving and succession planning, but also determining long term health and dental care coverage and the best way to fund these needs.  It is a myth that planning for these costs is somehow unethical or illegal.  Medicare Cost Sharing, Medicare Savings Programs, and the Medicaid program in general are not known for their ease in understanding the requirements or applications.  An Elder Law attorney can help with these decisions by either guiding one through them or referring one to good resources.  At a minimum, they will help one understand the benefits and detriments of these tools and other programs.

Social Security is an area that can be complicated.  Timing and knowledge of one’s rights and duties are everything.  For instance, benefits are generally automatically deposited directly to one’s bank account.  Survivor benefits change immediately upon the death of a spouse.  For example, benefits received the month after the death of a recipient must be returned to Social Security.  In fact, Social Security will retrieve the funds by reaching back into the account in which the funds were deposited.  They will do this without warning and a stern reprimand.  This could lead to confusion and unintentional bounced checks.  Elder Law attorneys can help by reminding the surviving spouse or personal representative gently and at the right time what steps to take.

Occasionally, a person is faced with financial scams by unsavory businesses or financial abuses by those who are supposed to protect them. An Elder Law attorney generally will help remedy and rectify these situations and get procedures in place so that these occurrences are not repeated.

Social needs of the elderly and their caregivers are often not addressed.  These situations can be more dangerous and unanswered when family members do not live nearby.  If left alone and out of touch, the elderly may face depression and other silent ailments.  There are many wonderful low cost and free programs that address these needs.  A great Elder Law attorney will be able to help with these issues as well.

If you have Elder Law questions or needs, check in with an Elder Law attorney.  It can give you and your family peace of mind.