Term Paper

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SAINT LEO UNIVERSITY

GBA231: BUSINESS LAW I

SPRING TERM I, 2020

INSTRUCTOR: JACOBS

GBA-231 Term Paper Assignment

Review all materials in Chapter 52 and conduct research on the United States Supreme Court case of  Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).  The text of this case, along with numerous case briefs, commentaries, summaries, etc., may be found by simply entering the full name of the case into any major online search engine of your choosing.  Alternatively, you may use Westlaw, Lexis or any other professional legal research databank in your research, however, use of such is not required. Following your research, review the following questions:

• What was the ultimate numerical vote of the court? • When and how can life support be withdrawn? • How does death by refusal of treatment differ from suicide? • How does a living will work and when does it become of legal effect? • What is a health care directive and how does it work?

After completing your research, summarize your answers, and, along with any other sources, if any, address and support your particular position/view on the following specific topics

and make sure you answer the questions contained in the following four (4) paragraphs highlighted in green)

1. What are the potential foreseeable financial, psychological, and medical, yet unintended, harmful consequences to one’s family and friends in failing to provide a properly executed will and living will prior to one’s final illness and death?

2. What are the fundamental distinctions between recuperative medical care and palliative care? Who should be included in the decision to modify care from recuperative to palliative? When, if ever, is the right to refuse any and all medical care appropriate when such virtually ensures the death of the patient?

3. What professionals, medical or otherwise, should be involved in advising decisions concerning end-of-life wishes? How does euthanasia differ from a simple cessation of treatment? Who should make end of life decisions for those who are without a family member to take on such a role?

4. What measures can be taken to ensure the quality of ongoing family and social relationships, individually and as a group, to end-of-life patients? What pitfalls are to be avoided in ensuring maintenance of these relationships? What actions may be taken to ensure the spiritual and existential dimensions of the process are respected and integrated?

You must submit this assignment as a Word document to the Chalk and Wire link found inside our Saint Leo University GBA 231 D2L course shell. The link will take you to an external assessment tool called Chalk and Wire. Instructions for submitting the document will be available after you click on the link above and are also located in the Student Resources folder under Student Handouts.

Term papers absolutely, positively must be submitted into ChalkandWire – per the Saint Leo “main campus” folks.

Be sure to use proper APA format for citations (Instructor will provide a simple handout on using APA format)

GRJ

Cruzan v. Director, Missouri Department of Health

497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224, 1990 U.S.

Brief Fact Summary. Nancy Cruzan was involved in a car accident, which left her in a “persistent vegetative state.” After it became clear that Cruzan would not improve, her parents requested that the hospital terminate the life-support procedures the hospital was providing. The hospital and subsequently the State court refused to comply. Facts. Nancy Cruzan was involved in a car accident, which left her in a “persistent vegetative state.” In order to feed her and to facilitate her recovery, surgeons implanted into her a gastronomy feeding and hydration tube. After it become apparent that Cruzan had virtually no chance for recovery, Petitioners, Cruzan’s parents, asked hospital employees to terminate the life support procedures. The State hospital employees refused to honor this request without court approval. After trial, on appeal, the Missouri Supreme Court refused to order termination of the life-support, because clear and convincing evidence was not produced to show that Cruzan herself would have chosen to refuse treatment. Issue. Did Cruzan have a right under the United States Constitution that would require the hospital to withdraw life-sustaining treatment? Did Missouri’s procedural requirement for clear and convincing evidence of an incompetent person’s desire to terminate life support before it is terminated violate the Constitution?

Held. No and No. The Missouri Supreme Court is affirmed. Prior decisions support the principle that a competent person has a constitutionally protected liberty interest in refusing medical treatment under the Due Process Clause. But incompetent persons do not enjoy the same rights, because they cannot make voluntary and informed decisions. The right to terminate life-sustaining treatment of an incompetent, if it is to be exercised, must be done for such incompetent by a surrogate. Missouri’s interest in the preservation of life is unquestionably a valid State interest. The Due Process Clause protects an interest in life as well as a right to refuse life-saving treatment. Missouri may legitimately safeguard these personal decisions by imposing heightened evidentiary requirements. Moreover, even when available, family members will not always act in the best interests of a patient. The State is entitled to safeguard against such abuses.

Discussion. This case is labeled a “right to life case.” Most of the attention, however, is focused on burden of proof standards for showing a person’s intent with regard to a life-threatening matter. This type of case, where a person requests that her life be left to natural processes, must be distinguished from cases that involve assisted suicide, whereby a doctor will take an affirmative step to induce a person’s death.

THE ENTIRE TEXT OF THE CRUZAN DECISION CAN BE FOUND IN THE SAINT LEO UNIVERSITY GBA 231 D2L COURSE SHELL – AS AN ATTACHMENT INSIDE BOTH “MODULE 1” AND “MODULE 8” MATERIALS OF THE COURSE.

DO I NEED A WILL?

1. What is a will?

2. Does a will cover everything I own?

3. What happens if I don’t have a will?

4. Are there various kinds of wills?

5. What if my assets pass to a trust after my death?

6. Can I change or revoke my will?

7. How are the provisions of a will carried out?

8. Who should know about my will?

9. Will my beneficiaries have to pay estate taxes?

10. What other planning should I do?

11. How can I find a lawyer to write a will for me?

1. What is a will?

Your will is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property) and give your choice of guardians for your children. It becomes irrevocable when you die. In your will, you can name:

Your beneficiaries. You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your will. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets (any assets that your will does not dispose of by specific gift).

A guardian for your minor children. You may nominate a person to be responsible for your child’s personal care if you and your child’s other parent die before the child turns 18. You may also name a guardian — who may or may not be the same person — to be responsible for managing any assets given to the child, until he or she is 18 years old. You can also nominate a guardian in a separate writing other than a will. Such a writing should be signed by all of the child’s parents.

An executor. You may nominate a person or institution to collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute your assets to your beneficiaries according to the instructions in your will. Your executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose your executor carefully. An executor is entitled to compensation for the services provided.

Keep in mind that a will is just part of the estate planning process. Whether your estate is large or small, you probably need an estate plan. For more information on estate planning, see the State Bar’s pamphlet Do I Need Estate Planning?

2. Does a will cover everything I own?

No. Generally speaking, your will affects only those assets that are titled in your name at your death and for which there is no designated beneficiary. Those assets that are not affected by your will include:

Life insurance. The cash proceeds from a life insurance policy are paid to whomever you have designated as beneficiary of the policy in a form filed with the insurance company — no matter who the beneficiaries under your will may be.

Retirement plans. Assets held in retirement plans, such as a 401(k) or an IRA, are transferred to whomever you have named as beneficiary in the plan documents — no matter who the beneficiaries under your will may be.

Assets owned as a joint tenant with right of survivorship. Assets such as real estate, automobiles, bank accounts and stock accounts that are held in joint tenancy with right of survivorship will pass to the surviving joint tenant upon your death, and not in accordance with any directions in your will.

“Transfer on death” or “pay on death.” Certain securities and brokerage accounts include a designation of one or more beneficiaries to receive the assets in that account when the account owner dies. The names of the beneficiaries are preceded by the words “transfer on death” or “TOD.” Other assets, such as bank accounts and U.S. savings bonds, may be held in a similar form using the owner’s name and the beneficiaries’ names preceded by the words “paid on death” or “POD.”

“Community property with right of survivorship.” Married couples or registered domestic partners may hold title to their community property assets in their names as “community property with right of survivorship.” Then, when the first spouse or domestic partner dies, the assets pass directly to the surviving spouse or partner without being affected by the will.

Living trusts. Generally, assets held in a revocable living trust are distributed according to the instructions in the trust regardless of the instructions in your will — with no need for court supervision. You can name yourself as the initial trustee of your living trust (most people do), and then name a successor trustee to manage the trust if you become unable to do so. With a living trust, your assets are managed for your benefit during your lifetime and then transferred to your beneficiaries without court supervision when you die. For more detailed information, see the State Bar pamphlet Do I Need a Living Trust? (See #1 for information on ordering pamphlets.)

Your spouse’s or domestic partner’s half of community property. In California, any assets acquired by you and your spouse or registered domestic partner from earnings during your marriage or registered domestic partnership are community property. You and your spouse or registered domestic partner own equal shares of those assets. Your will, therefore, affects only your half of the community property. Assets that either of you owned before your marriage or registered domestic partnership, and gifts or inheritances acquired later, together with the earnings from such interests, are usually separate property. Your will affects all of your separate property assets.

Even if your entire estate consists of assets held in joint tenancy, a life insurance policy and a retirement plan, there are still good reasons for making a will. For example, if the other joint tenant dies before you do, then the property held in joint tenancy will be in your name alone and subject to your will. If named beneficiaries die before you do, the assets subject to a beneficiary designation may be payable to your estate. If you receive an unexpected bonus, prize, refund or inheritance, it would be subject to your will. If you have minor children, providing for someone to manage assets on their behalf if both parents die is very important.

3. What happens if I don’t have a will?

If you die without a will (referred to as intestate), California law will determine the beneficiaries of your estate. Contrary to popular myth, if you die without a will, everything does not automatically go to the state. If you are married or have established a registered domestic partnership, your spouse or domestic partner will receive all of your community property assets. Your spouse or domestic partner also will receive part of your separate property assets, and the rest of your separate property assets will be distributed to your children or grandchildren, parents, sisters, brothers, nieces, nephews or other close relatives.

If you are not married or in a registered domestic partnership, your assets will be distributed to your children or grandchildren, if you have any — or to your parents, sisters, brothers, nieces, nephews or other relatives. If your spouse or domestic partner dies before you, his or her relatives may also be entitled to some or all of your estate. Friends, a non-registered domestic partner or your favorite charities will receive nothing if you die without a will. The State of California is the beneficiary of your estate if you die intestate and you (and your deceased spouse or domestic partner) have no living relatives.

4. Are there various kinds of wills?

Yes. In California, you can make a will in at least one of three ways:

A handwritten or holographic will. This will must be completely in your own handwriting. You must date and sign the will. Your handwriting has to be legible, and the will must clearly state what you are leaving and to whom. A handwritten will does not have to be notarized or witnessed. However, any significant typed material in a handwritten will may invalidate the will. (A typed will must be signed by two witnesses who jointly witness the execution of the will or were both present when you acknowledged that you had signed the will.) It is a good idea to consult with a qualified lawyer to make sure your will conforms with California law and does not have any unintended consequences.

A statutory will. California law provides for a “fill-in-the-blanks” will form. (This form can be printed out from the State Bar website. Go to www.calbar.ca.gov and click on Will Form under Quicklinks.) This will form is designed for people with relatively small estates. If there is anything you do not understand or if you are making any provisions that are complicated or unusual, you should ask a qualified lawyer to advise you.

A will prepared by a lawyer. A qualified estate planning lawyer can make sure that your will conforms with California law. The lawyer can make suggestions and help you understand the many ways that assets can be transferred to or for the benefit of your beneficiaries. A lawyer can also help you develop a complete estate plan and offer alternative plans that may save taxes. This kind of planning can be extremely helpful and economical in the long run. Your lawyer will either personally supervise the signing of your will or will give you detailed instructions on the rules for its execution by you and two witnesses (who are not beneficiaries of your estate).

Like most states, California has unique laws about what constitutes a valid will and how one should be executed. Use caution if you try to draft a will using a will-drafting kit or software.

No matter what kind of will you use, the will should be solely yours and not a joint will with your spouse, registered domestic partner or anyone else.

Also, keep in mind that your will is not a living will. The term “living will” is used in many states to describe a legal document that states you do not want life-sustaining treatment if you become terminally ill or permanently unconscious. In California, advance health care directives and durable powers of attorney for health care decisions are used for that same purpose (see #10).

5. What if my assets pass to a trust after my death?

You may make a provision in your will for your assets to be distributed to a trust upon your death. When trusts are created under a will, they are known as testamentary trusts. With an appropriate beneficiary designation, testamentary trusts can even be beneficiaries of life insurance policies and retirement plans.

If you have a living trust (a trust established during your lifetime), then your will is often referred to as a pour over will. Such a will includes instructions to transfer all remaining assets (assets that were not transferred to your living trust during your lifetime) to the living trust at the time of your death. They are also referred to as an inter vivos, grantor or revocable trusts.

For relatively small gifts to beneficiaries who are minors, you may also consider providing for transfers from your estate to a custodian under the California Uniform Transfers to Minors Act.

6. Can I change or revoke my will?

Yes. You should review your will periodically. If it is not up to date when you die, your estate may not be distributed as you wish.

Your will can be changed through a codicil, a legal document that must be drafted and executed with the same procedure that applies to wills. A codicil is an amendment to your will. You should not change your will by simply crossing out words or sentences, or by making any notes or written corrections on it.

You may also establish a new will and, in doing so, revoke your old will. If you get married or divorced, or establish a registered domestic partnership or terminate one, you should seek the advice of a lawyer and make a new will, as such a change in status results in automatic changes to your will. You should also review your will when there are any other major changes in your family (such as births and deaths), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for your proposed guardian or executor or testamentary trustee to act in that capacity.

If you have moved to California from another state and have a will that is valid under the laws of that state, California will honor its validity.It is important for you to review your will with a qualified California lawyer, however, since California law will govern the probate of your will if you live here at your death. If you move out of state, your California will should be reviewed by a lawyer there.

7. How are the provisions of a will carried out?

They are usually carried out through a court supervised process called probate. Typically, the executor named in your will starts the probate process after your death by filing a petition in court and seeking official appointment as executor. The executor then takes charge of your assets, pays your debts and, after receiving court approval, distributes the rest of your estate to your beneficiaries.

Simpler procedures are available for transferring assets to a spouse or registered domestic partner, or for handling estates with assets under $150,000.

The probate process has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the executor’s handling of each estate, which can help protect the beneficiaries’ interests.

One disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust. Discuss such advantages and disadvantages with an estate planning lawyer before making any decisions.

8. Who should know about my will?

No one — other than you and the lawyer who wrote the will — needs to know the contents of your will. But your executor and other close friends or relatives should know where to find it. Your original will should be kept in a safe place such as your safe deposit box or a locked, fireproof box at your residence or office.

9. Will my beneficiaries have to pay estate taxes?

It depends on the circumstances. Assets left to your spouse (if he or she is a U.S. citizen) or any charitable organization will not be subject to estate tax. Assets left to anyone else — even your children — will be taxed if that portion of the estate (including gifts made during lifetime) totals more than the lifetime gift and estate tax exemption (which was $5.45 million in 2016. Under current law, the exemption is scheduled to rise to account for inflation.). For estates that approach or exceed this amount, significant estate taxes can be saved by proper estate planning before your death or, for couples, before one of you dies.

Keep in mind tax laws often change. Estate planning for tax purposes must take into account not only estate and gift taxes, but also income, capital gains, property and generation-skipping taxes as well. You should obtain qualified legal advice about taxes and current tax law from a competent lawyer during the estate planning process.

10. What other planning should I do?

Make a list of your assets and debts. This can be extremely helpful when you are no longer around to provide such information. Make sure that your executor or other family members know where to find the list. Include your bank accounts, safe deposit boxes, stocks and bonds, real estate, and other assets on the list, including online accounts. Also, list the names and addresses of anyone to whom you owe money.

Make and circulate a list of your professional advisors. Letting your family members and professional advisors know the other professionals who you work with can improve communications and encourage teamwork among your advisers, streamline tasks being done for you, and ensure that the proper people are contacted in the event of your death, sickness or incompetence.

Set up a durable power of attorney for asset management. In this document, you would appoint another individual (the attorney-in-fact) to make property management decisions on your behalf if you ever become unable to do so. During your lifetime, the attorney-in-fact would manage your assets and be required to act solely in your best interests.

Consider preparing an advance health care directive / durable power of attorney for health care. This document allows the person named as attorney-in-fact to make health care decisions for you when you can no longer make them for yourself. It may also contain your wishes concerning life-sustaining treatment, other health care issues, organ donation, burial instructions and your funeral.

11. How can I find a lawyer to write a will for me?

If you do not know a lawyer who is qualified to discuss your assets and your estate plan with you and to write a will for you, obtain referrals from someone whose judgment you can trust — a friend or employer, for example.

You can also call a State Bar-certified lawyer referral service in your area. For an online list of such services, visit the bar’s website at www.calbar.ca.gov/lrs. For a recorded message with the phone numbers of local certified lawyer referral services, call 866-44-CA-LAW (442-2529).

If you are out of state, call 415-538-2250 to hear the same message or check the Yellow Pages of your telephone directory or contact your local bar association.

Some lawyers who work in the estate planning area are “certified specialists in estate planning, trust and probate law.” This means that they have met standards for certification set by the State Bar. (Not all lawyers who have experience in estate planning, however, seek such certification.)

For an online list of State Bar-certified specialists, go to the Legal Specialist Search page or contact the State Bar at 415-538-2120. For more information on finding an attorney, see the State Bar pamphlet Finding the Right Lawyer.

Running head: SAMPLE FOR STUDENTS

Sample APA Paper for Students Interested in Learning APA Style 6th Edition

Jeffrey H. Kahn

Illinois State University

Abstract

The abstract should be a single paragraph in block format (without paragraph indentation), and the appropriate length depends on the journal to which you are submitting, but they are typically between 150 and 200 words. (Students should consult their instructor for the recommended length of the abstract.) Section 2.04 of the APA manual (American Psychological Association [APA], 2010) has additional information about the abstract. The abstract is important because many journal readers first read the abstract to determine if the entire article is worth reading. The abstract should describe all four parts of an empirical paper (i.e., Introduction, Method, Results, and Discussion). Consider writing one or two sentences summarizing each part of a paper, and you’ll have a nice abstract.

Sample APA Paper for Students Interested in Learning APA Style

Before getting started you will notice some things about this paper. First, everything is double-spaced. Second, margins are 1-inch wide on all sides. Third, there are several headings used throughout to separate different parts of the paper; some of the headings are in bold. Fourth, there is exactly one space after each punctuation mark (except for periods at the end of a sentence, after which there are two spaces). Fifth, the upper left of each page has a running head in all capital letters, and the upper right has the page number. Try to pay attention to all of these details as you look through this paper.

Now that those details are out of the way, you should know that this first part of the paper is called the “Introduction” section, yet it does not have a heading that actually says

“Introduction.” Instead, the title of the paper is typed at the top of the first page (be sure to center the title, but do not put it in bold). In this section you would often start with a topic paragraph that introduces the problem under study. The importance of the topic should be pretty clear from the first paragraph or two of the Introduction. Section 2.05 of the APA manual (APA, 2010) will help give you some ideas about how to write this.

The bulk of the Introduction section is background literature on the topic. Here a literature review is often very helpful to provide a theoretical or empirical basis for the research. Try to provide the reader with enough information on the topic to be able to conclude that the research is important and that the hypotheses are reasonable. Any prior work on the topic would be useful to include here, although prior work that is most directly related to the hypotheses would be of greatest value.

Remember to cite your sources often in the Introduction and throughout the manuscript. Articles and books are cited the same way in the text, yet they appear different on the References page. For example, an article by Cronbach and Meehl (1955) and a book by Bandura (1986) are written with the authors’ names and the year of the publication in parentheses. However, if you look on the References page they look a little different. Remember that APA style does not use footnotes or anything like that for citations. Two other things about citations are important. When a citation is written inside parentheses (e.g., Cronbach & Meehl, 1959), an ampersand is used between authors’ names instead of the word “and.” Second, when citing an author’s work using quotations, be sure to include a page number. For example, Rogers (1961) once wrote that two important elements of a helping relationship are “genuineness and transparency” (p. 37). Notice that the page number is included here. Unless a direct quote is taken from a source, the page number is not included.

The last section of the Introduction states the purpose of the research. The purpose can usually be summarized in a few sentences. Hypotheses are also included here at the end of this section. State your hypotheses as predictions (e.g., “I predicted that...”), and try to avoid using passive tense (e.g., “It was predicted that...”). You will notice that hypotheses are written in past tense because you are describing a study you have finished.

References

American Psychological Association. (2010). Publication manual of the American Psychological

Association (6th ed.). Washington, DC: Author.

Bandura, A. (1986). Social foundations of thought and action: A social cognitive theory.

Englewood Cliffs, NJ: Prentice Hall.

Cronbach, L. J., & Meehl, P. E. (1955). Construct validity in psychological tests. Psychological

Bulletin, 52, 281-302. doi:10.1037/h0040957

Crowne, C. P., & Marlowe, D. (1960). A new scale of social desirability independent of psychopathology. Journal of Consulting Psychology, 24, 349-354. doi:10.1037/h0047358

Rogers, C. R. (1961). On becoming a person. Boston: Houghton Mifflin. e 2

Convergent and Discriminant Validity of Depression Scale

What Do a Living Will and Power of Attorney for Health Care Cover?

Medical issues to address in your living will and power of attorney for health care

Your Living Will

Your living will (health care declaration) is where to write out what you do and do not want in terms of medical care if you are unable to speak for yourself. You don't need to become a medical expert to complete your document, but it will help you to become familiar with the kinds of medical procedures that are commonly administered to patients who are seriously ill.

Life-Prolonging Medical Care

In most states, living wills ask you whether or not you want to receive life-prolonging treatments at the end of life. Such procedures typically include:

· transfusions of blood and blood products

· cardiopulmonary resuscitation (CPR)

· diagnostic tests

· dialysis

· administration of drugs

· use of a respirator, and

· surgery.

If you want more information, you can discuss these treatments with your doctor or a patient representative at a hospital or health insurance plan office, or you can turn to self-help resources for more detailed information.

Food and Water

If you are close to death from a serious illness or are permanently comatose, you may not be able to survive without the administration of food and water. Unless you indicate that treatment should be withheld, doctors will use intravenous (IV) feeding or tubes to provide you with a mix of nutrients and fluids. IV feeding, where fluids are introduced through a vein in an arm or a leg, is a short-term procedure. Tube feeding, however, can be carried on indefinitely.

 

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Permanently unconscious patients can sometimes live for years with artificial feeding and hydration without regaining consciousness. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

When you make your health care documents, you can choose whether you want artificially administered food and water withheld or provided. This decision is difficult for many people. Keep in mind that as long as you are able to communicate your wishes, by whatever means, you will not be denied food and water if you want it.

Palliative Care (Pain Relief)

If you want death to occur naturally -- without life-prolonging intervention -- it does not mean you must forgo treatment to alleviate pain or keep you comfortable. This type of care, sometimes known as "comfort care" is now more commonly called "palliative care."

Rather than focusing on a cure or prolonging life, palliative care emphasizes quality of life and dignity by helping a patient remain comfortable and free from pain until life ends naturally. Palliative care may be administered at home, in a hospice facility, or at a hospital.

You may wish to spend some time educating yourself about palliative care. You can include your feelings and preferences about such care in your living will.

DNR Orders and POLST Forms

Some people who do not wish to receive life-prolonging treatment when close to death -- most likely those who are already critically ill -- may also want to prepare a "do not resuscitate" order, or DNR order. If a medical emergency occurs, this form alerts emergency personnel that you do not wish to receive cardiopulmonary resuscitation (CPR).

If you are in the hospital, your doctor can add a DNR order to your medical record. If you are not hospitalized, you can make what's called a "prehospital DNR order," to alert paramedics who come to your home or care facility. In addition to preparing a prehospital DNR order, you should also obtain an easily identifiable MedicAlert-type bracelet, anklet, or necklace.

In an increasing number of states, DNR orders are being included in or replaced by a broader set of medical orders called "Physicians Orders for Life-Sustaining Treatment" (POLSTs) or something similar. In addition to instructions about CPR, POLST forms include directions to health care providers about other life-prolonging treatments, such as intubation, antibiotic use, or feeding tubes. In this way, a POLST is something like an advance health care directive or living will, but it is not a complete substitute for those documents. (To learn more about POLSTs, including how they are used and what they are called in your state, see Physicians Orders for Life-Sustaining Treatment (POLST) Forms.)

If you think you might want to make a DNR order or POLST, talk to your doctor or a hospital representative.

Your Durable Power of Attorney for Health Care

You can use a durable power of attorney for health care to name someone (your health care agent) to oversee your health care wishes and make any necessary medical decisions for you. You can give your health care agent as much or as little power as feels comfortable to you. Most people give their health care agent comprehensive power to supervise their care.

Recognizing this, the power of attorney forms for most states give your agent the authority to make all health care decisions for you unless you specifically place limits on that authority in the document. This means that your agent will normally be permitted to:

RELATED ADS

· consent or refuse consent to any medical treatment that affects your physical or mental health (there are usually exceptions to this rule for situations such as extreme psychiatric treatments and termination of pregnancy, and your agent is not permitted to authorize any act that violates the wishes you've stated in your living will)

· hire or fire medical personnel

· make decisions about the best medical facilities for you

· visit you in the hospital or other facility even when other visiting is restricted

· gain access to medical records and other personal information, and

· get court authorization, if required to obtain or withhold medical treatment, if for any reason a hospital or doctor does not honor your living will or the authority of your health care agent.

Organ Donation and Body Disposition

Most of your agent's authority under a durable power of attorney for health care will end upon your death. In many states, however, you can give your agent permission to oversee the disposition of your body, including authorizing an autopsy or carrying out your wishes for organ donation. If you want your agent to have these powers, you should say so in your power of attorney document.

If you have specific wishes about these matters, your living will is a good place to write them down. Your agent is legally required to follow your instructions whenever possible. (For more information, see The Organ Donor: A Guide or Donate Your Body to Medicine.)

Limiting Your Health Care Agent's Authority

Keep in mind that as long as you are able to understand and communicate your own wishes, your agent cannot override what you want. Your agent steps in only if you can no longer manage on your own.

In addition, as mentioned, you are permitted to restrict your agent's authority in any way that you like. For example, some people give their health care agent only the authority to carry out the health care wishes specified in their living will, and not to make other medical decisions for them.

Think carefully, however, before you add limiting language to your power of attorney. One of the most important reasons for appointing a health care agent is so that someone will be there to respond to the needs of your situation as it develops. Your medical needs may change in ways that you cannot now foresee, and an agent who has full power can act for you no matter what the circumstances.

WEBMD: What Is Palliative Care?

By Katherine Kam

Listen

FROM THE WEBMD ARCHIVES

Since Kathleen Huggins was diagnosed with lung cancer last November, doctors have been working hard to try to cure her. Surgeons removed part of her lung, and soon she'll begin chemotherapy.

But the 56-year-old New York City resident also benefits from a new type of medical specialty called palliative care. It has its own distinct mission: to relieve suffering and improve quality of life for people with serious illnesses.

For example, Huggins had a large, painful surgical incision in her torso. Her palliative care doctor made sure the pain was managed properly.

"They would constantly ask me what my pain level was and adjust my medication to what I needed to make me comfortable," Huggins tells WebMD.

In the days before surgery, she had prepared spiritually by talking to a rabbi -- a member of her palliative care team. Then, right before doctors took her to the operating room, that same rabbi appeared at her bedside.

"She sat there with me the whole time and just held my hand," Huggins says.

A social worker -- also on the palliative care team -- now is helping her with practical matters: obtaining a wig before she loses her hair and arranging transportation for chemotherapy sessions.

Twice each week, she meets with a counselor. This team member helps her to deal with the intense emotions that come with having cancer.

What Is Palliative Care?

Say "palliative care" and most people imagine cancer patients being made comfortable in an end-of-life hospice setting.

But palliative care is actually a new medical specialty that has recently emerged -- and no, it's not the same as hospice. It doesn't serve only the dying. Instead, it focuses more broadly on improving life and providing comfort to people of all ages with serious, chronic, and life-threatening illnesses.

These diseases may include cancer, congestive heart failure, kidney failure, chronic obstructive pulmonary disease, AIDS, and Alzheimer's, among others. "It's the whole spectrum, really," says Joseph Chan, MD, a palliative care physician in Fort Smith, Ark.

"The vast majority of America's medical schools have palliative care programs and are teaching medical students and residents about palliative care. That didn't occur 10 years ago. There was literally no education occurring on the topic," says Diane Meier, MD, director of the Center to Advance Palliative Care at Mount Sinai School of Medicine in New York City.

Currently, there are more than 1,400 hospital palliative care programs in the U.S., according to Meier. About 80% of large U.S. hospitals with more than 300 beds have a palliative care program, she says. Among smaller hospitals with more than 50 beds, about 55% have programs.

Typically, a palliative care team includes a physician, nurse, and social worker, Meier says. But it often involves a chaplain, psychologist or psychiatrist, physical or occupational therapist, dietitian, and others, depending on the patient's needs.

When Is Palliative Care Appropriate?

Patients like Huggins can begin palliative care as soon as they're diagnosed with a serious illness, at the same time they continue to pursue a cure. Palliative care doesn't signal that a person has given up hope for a recovery.

Some patients recover and move out of palliative care. Others with chronic diseases, such as COPD, may move in and out of palliative care as the need arises.

If cure of a life-threatening disease proves elusive, palliative care can improve the quality of patients' lives. And when death draws near, palliative care can segue into hospice care.

Quality of Life

When it comes to quality of life, each patient has his or her own vision.

"Each suffering is unique. Each individual is unique, and each family and the dynamics are unique," Chan says.

"There is no generalization and that's the key," Meier says. "Palliative care is genuinely patient-centered, meaning: We ask the patient what's important to them and what their major priorities are. Based on what the patients or the family tell us, we then develop a care plan and a strategy that meets the patient's goals and values."

For some people, Meier says, the goal or value might be to live as long as possible -- no matter what the quality.

"Maybe one in 10 to one in 20 patients don't care if they're on a ventilator and on dialysis for the rest of their life. They're waiting for a miracle and that's what they want," she says. "They understand the odds and that's their choice. And then we will do everything in our power to make sure that their goals are respected and adhered to."

But some patients, such as Merijane Block, care more about the quality of each day. The 57-year-old San Francisco woman was diagnosed at age 38 with breast cancer that has spread to her spine.

"My hope [is] to live as well as I can for as long as I can. Actually, for me, the emphasis is on the wellness. The length of my life has ceased to be as important as it used to be before I was diagnosed with cancer. I always wanted to live to be 100 when I was young and innocent -- like the year before I was diagnosed," she says.

Block's palliative care doctor prescribes a medicated patch for chronic spinal pain that would be debilitating otherwise.

"I have pain all the time, but I'm not living in this state of agonizing pain because my pain is actually well managed," she says.

Although pain management is a major part of palliative care, patients can also seek help with other symptoms such as nausea, loss of appetite, fatigue, constipation, shortness of breath, and trouble sleeping.

Like Huggins, people who face serious illness often need emotional and spiritual support.

Beverly, a 55-year-old San Francisco Bay Area woman who requested that her last name be withheld, was diagnosed with bladder cancer at age 37 and has had multiple recurrences. She felt outraged, as she worried that her illness might have been preventable; she believes it may have stemmed from textile dyes that she had used frequently without knowing of their cancer-causing potential.

She resents the pressure to be an upbeat cancer warrior.

"[Cancer] is not a gift. This is the worst thing that's ever happened to me," Beverly says.

Her family and friends urged her to be positive. But when a social worker allowed her to vent her anger, she began to cope with her powerful emotions. "I felt that compassion from her. I got to be a whole person in her eyes," Beverly says.

Holistic Focus

Palliative care is holistic. For patients, this means attending to the challenges that illness poses in every aspect of life. It also means that palliative care extends to family members and caregivers. Support services may include:

· educating family members about the patient's illness, treatment, and medications

· respite care for caregivers

· home help with transportation, meals, and shopping.

But flexibility is important. Meier recalls one patient, a 24-year-old woman who developed acute leukemia. She had intense bone pain, severe shortness of breath, panic attacks, anxiety, and a large, devastated family with one sibling who was a substance abuser. As a result, nobody in the family wanted her to have any pain medicine.

"You get this sense of how complex and intense the palliative care needs were for this young woman," Meier says. "Frankly, I don't think she would have gotten through her treatment at all had she not had expert treatment of her pain, her shortness of breath, her anxiety, and a tremendous amount of counseling and support for her family."

When faced with serious illness, some patients yearn for reconciliation with an estranged spouse or child, Chan says. Social workers will attempt to contact the person at the patient's request.

Is Palliative Care Effective?

With all of its emphasis on the whole person -- even one's family and relationships -- does palliative care truly improve quality of life?

In a study published in August 2010 in the New England Journal of Medicine, researchers at Massachusetts General Hospital found that advanced lung cancer patients who received early palliative care actually had lower rates of depression and better quality of life than patients who received standard treatment only.

The study of 151 patients, who were randomly assigned to get standard lung cancer care alone or to get standard care and palliative care at the same time, also yielded a surprise: The palliative care patients tended to live about 2.7 months longer. This may have been due to more effective treatment of depression, better management of symptoms, or less need for hospitalization.

For a patient with advanced lung cancer, that extra time is significant.

"If we had a new chemotherapy agent that added three months to the life of lung cancer patients, everyone would be running to invest," Meier says. "I think the important thing for the public to understand is that suffering is actually bad for your health."

Medical Respite Care/ Recuperative Care

Medical respite care, also referred to as recuperative care,[1] [2] [3] [4] is acute and post-acute medical care for homeless persons who are too ill or frail to recover from a physical illness or injury on the streets but are not ill enough to be in a hospital. Unlike “respite” for caregivers, “medical respite” is short-term residential care that allows homeless individuals the opportunity to rest in a safe environment while accessing medical care and other supportive services. Medical respite programs provide hospitals with an alternative to discharging homeless patients to the streets or to unequipped shelters when patients would otherwise be discharged to their homes for self-care and recuperation.[5] In addition to providing post-acute care and clinical oversight, medical respite programs seek to improve transitional care for this population and end the cycle of homelessness by supporting patients in access benefits and housing.

As of 2014, over 70 medical respite programs have been established across the United States and a number are in development. Medical respite programs are housed in a number of different facility types including homeless shelters, motel rooms, nursing facilities, assisted living facilities and stand-alone facilities.[6] The largest facility is based out of Boston, Massachusetts (United States), called the Barbara McIinnis House, which has 104 beds for men and women in need of a safe place to recuperate after leaving a hospital.[7] The national average length of stay in medical respite programs is 40 days (30 days median).[8]

Studies and discussion about medical respite care include works on an individual[9] and program[10] level. A study out of Chicago looking at the impact of medical respite care on future hospitalizations found that patients who accessed medical respite care required fewer hospital stays (3.7 vs. 8.3 days) in the 12-months after program participation than those discharged from the hospital to the street or shelter.[11] Another study out of Boston found similar results with homeless patients requiring 50% fewer hospital readmissions in the 90-days following medical respite program participation than those released to their own care (the street or shelter).[12] Medical respite care has been discussed in the American Medical New Ethics Forum.[13] [14]

Medical respite care is listed as a strategy in the federal plan to prevent and end homelessness.[15] The Center for Medicare and Medicaid Innovation is currently conducting a national demonstration program to assess the impact of medical respite care. The demonstration is supported by the Affordable Care Act as an effort to improve health outcomes and health care quality while reducing health care spending for this population.[16]

The National Health Care for the Homeless Council maintains a Respite Care Providers' Network of over 700 providers, consumers, and advocates who seek to improve access to medical respite care for homeless individuals across the country.[17]

SAINT LEO UNIVERSITY

GBA231: BUSINESS LAW I

INSTRUCTOR: JACOBS

Chapter 52: Wills, Trusts and Estates

This chapter covers the law of wills and trusts. You can’t take it ($) with you, but you have some control over where it goes. The laws of wills and trusts are about control. This control is not absolute now and never has been. Yet with intelligent foresight and timely estate planning, the extent and breadth of possible control would surprise most people. It is no coincidence that the money of large family fortunes, first accumulated in the early industrial age, remains essentially intact today with the help of wills, trusts, and proper estate planning.

The origins of the laws of wills and trusts go back to the canon laws of the medieval church. The church had much control, not only over the spiritual life of its members, but also over the more temporal affairs such as the disposition of worldly goods. The early church-based patterns of disposition of property based on family relationships are still reflected in more modern day laws such as the Uniform Probate Code. These traditions are strongly evidenced in civil law countries where the notion of forced heirship is still alive and well. England’s break from the church under Henry VIII started a more tolerant tradition within the common law. In other parts of the world religion remains the cornerstone of the laws of devolution.

Transfers of property can be generally categorized into two main classifications: lifetime or inter vivos and death or testamentary transfers. With lifetime transfers, the main motivation elements are taxes, control, and present needs. The federal wealth transfer tax structure is extensive and very complicated. The three main components of that tax structure are the gift, estate, and generation skipping taxes. In addition, states have also developed their own property transfer tax structures based on inheritance taxes, estate pickup taxes, or some combination thereof. All these taxes are premised on the notion that wealth accumulation was done with the blessings of the law structure, and transfers of that wealth afford an opportunity for the government to share in those riches.

The control element also goes to the issue of how much the owner is actually willing to give up before he or she departs this life. Simple human nature is such that it can be most difficult to give up control over assets that took the better part of a lifetime to accumulate. This problem is further exacerbated if the intended donee is too young, too immature, or an out and out spendthrift.

Lifetime needs make inter vivos transfers ever more difficult. In an age of being exposed to possible catastrophic health care costs late in life, many people simply cannot afford to make lifetime transfers that would otherwise make for good estate planning. The burgeoning growth of living trusts and similar financial planning devices are testaments to efforts to try to resolve this dilemma.

Once the end has come, the next classification of transfers can be subcategorized into testate and intestate death transfers. Testate means that the person has spoken by way of a legally recognized will or will substitute. The law of wills is much like the law of death taxes—very complicated and formalized. The general public often looks at the cases on admission of wills to the probate process and sees them as being overly harsh or doctrinaire. The basic point that must be remembered is that the decedent is not there to challenge any arguments against his or her purported intent. There is a rhyme and reason to it all in spite of the sometimes-arbitrary nature of such proceedings.

If a person has not written a will, or the will is not admitted to probate, he or she is deemed to have died intestate. Every state has stepped into this void and written a will by way of an intestate statute. Under these laws, the devolution follows the pattern originally created by the medieval church. This pattern is basically designed to convey the property to the person’s perceived natural bounty. The problem is that in an age of a fifty percent national divorce rate, the possibility of multiple families’ claims makes having a will more necessary than ever. In all events, if you want to control the disposition of your property at your death, have an up-to-date will at the ready.

Once a probate proceeding has begun, the person appointed by the court to administer the estate will be charged with three major duties:

1. To garner the assets of the estate.

2. To net out those assets by paying all proper claims, taxes, and costs of administration.

3. To distribute the net proceeds of the estate per the will or the intestate statute.

INTRODUCTION TO WILLS, TRUSTS AND ESTATES

Wills transfer property upon a death. If one dies “intestate” (without a will), your property is distributed according to your state’s statute. Trusts are used to transfer property that will be held and managed for a beneficiary during one’s life. A living trust is a special type of trust used for estate planning. A living will declares a person’s wishes regarding emergency medical treatment and decisions regarding being kept alive on life support systems.

WILL

A will is a written declaration of how a person wants his or her property to be distributed upon death. Wills are made out by the maker – called a “testator” (male) or “testatrix” (female) -- to transfer property after their death to a beneficiary.

· Requirements for Making a Will : Each state has a Statute of Wills that establishes the testamentary capacity of the testator, writing requirements, and signature requirements to make a valid will. Testamentary capacity involves the legal age to make a will and the need for a “sound mind” in making a will.[footnoteRef:1] A will must be in writing – but there are few requirements about the nature of the writing. Most states require the signature of the testator to be at the end of a will for the will to be valid. (initials, nicknames, and even an “x” can be valid and legal signatures as long as it is clear the testator meant them to be his signature). [1: In Georgia, a person as young as 14 can make a will – in most states, the age is 18.]

· Attestation by Witnesses: Only mentally competent witnesses can attest a formal will. Most states require either two or three witnesses that are not beneficiaries under the will to sign an attestation clause, a declaration found after the testator’s signature in which the witnesses state they witnessed the will. (An example of a will is found at page 879).

· Codicil: Wills can only be amended by adding a codicil, a separate legal document from the will, which must be executed with the same formality as the will itself. Wills are not properly changed with cross-outs or strike outs or words added in their margins.

· Revoking a Will: A will is revoked when the testator burns, tears, obliterates, or, in any way, destroys it. Additionally, a properly executed subsequent will revokes a prior will if it is the intent of the testator. Wills can also be revoked by operation of law. For example, divorce or annulment revokes disposition of property to the former spouse under a will but the remainder of the will is valid. The birth of a child will usually automatically change an existing will because of the newborn’s property rights.

· Joint and Mutual Wills: A joint will is a single instrument that is executed by two or more testators. Mutual, or reciprocal, wills are when two or more testators execute separate wills with each leaving their property to each other.

· Special Types of Wills : The law sometimes recognizes types of wills that do not meet all the normal, formal requirements discussed. A holographic will is entirely hand written and signed by the testator and, in some states, may be legally valid even without witnesses.[footnoteRef:2] A nuncupative will is an oral will made in front of witnesses. Such oral wills are so-called “dying declarations” or “deathbed wills” and are invalid unless the testator is in fact dying. [2: Georgia does not accept holographic wills.]

· Simultaneous Deaths: The Uniform Simultaneous Death Act provides that each deceased person’s estate will be treated as though they had survived.

· Probate: When a person dies, his or her property must be collected, debts paid and taxes paid and the remainder of his estate distributed to his heirs (if he died with a will) or to the beneficiaries set by state law (if he died without a will). The process of settling an estate is probate, and is governed by state statute, and usually administered through a probate court. A personal representative is appointed to handle the will, either by the court, or by the testator, naming an executor or executrix in the will. If you die intestate, the court appoints an administrator or an administratrix to handle your estate. An attorney is also usually appointed to help administer the estate and to complete the probate.

Ethics: Videotaping the Signing of a Will

To prevent unwarranted will contests, a testator or testatrix can use a videotaped will to supplement a written will. Videotaping a will that can withstand challenges by disgruntled relatives and alleged heirs involves a certain amount of planning. Videotaped wills can only be used to supplement a written will, not to replace them. Videotaped wills, if properly made, reduce questions about the identity of the decedent’s true and correct will, the decedent’s state of mind and even his true intentions – giving him a chance, for example, to “reach out from the grave” and explain why he chose not to leave property to particular individuals.

TESTAMENTARY GIFTS

A gift of real estate left by will is called a devise ; personal property willed is called a bequest or a legacy. Specific gifts (gift, ring, a boat, etc.) are specially identified pieces of property. General gifts are not identified as to the specific property from which it will be made, so it comes from the general estate (such as money). The residuary gifts are established by the residuary clause leaving the remainder of the estate to someone (“I give my daughter the rest, remainder and residual of my estate.”). People inherit subject to all outstanding claims against the property, such as liens or mortgages, but can renounce the inheritance if they choose.

· Lineal Descendants:[footnoteRef:3] A will often states that a person’s property will be left to his “lineal descendants” (children, grandchildren, etc.) – either per stirpes or per capita. [3: n. a person who is in direct line to an ancestor, such as child, grandchild, great-grandchild and on forever. A lineal descendant is distinguished from a "collateral"descendant, which would be from the line of a brother, sister, aunt or uncle.]

· Per Stirpes Distribution: Per stirpes distributes an estate based on the representation of the parent, so that a testator’s children (or a children’s children) will inherit their equal share of a deceased parent. If the testator’s spouse is still alive, the children get nothing. See the diagram below, which makes more sense of a per stirpes will. A = the spouse of the testator (dead) in the diagram. If A had lived she would have inherited everything in the will. But she is dead when her husband passed. Therefore, any of A’s 3 children who are alive at the time of the testator’s death receive 1/3rd of the estate ©. Because B and D, the couple’s other 2 children, are dead in the example, B and D’s children equally share the 1/3rd shares of both B and D.

· Per Capita Distribution: This type of distribution means that an estate will be distributed to the surviving lineal descendants equally. Example: A is dead when her husband passes, so all the estate of the husband will go to the lineals. If the testator has 2 living children at the time of his death, and 2 living grandchildren and 2 living greatgrandchildren, each of his 6 living descendants will receive 1/6th of his estate.

· Ademption : If a specific gift is left to a beneficiary, but the property is no longer part of the estate, the beneficiary gets nothing. This is an ademption. Example: John has an estate worth $2 million and he has 2 children. In his will, he leaves his home, worth $1 million, to his son, and leaves all his money to his daughter. Before John passes, however, he sells the house and banks the sales proceeds of the house. Now John has $2 million in the bank and he ends up with that same $2 million when he passes. The daughter will receive ALL the money. The son will get nothing – the property the son was to receive under the will— the house – was adempted .

· Abatement : When a testator’s estate is not large enough to cover all the bequests, abatement applies. Specific gifts are distributed, then the general gifts, and finally the residual gifts. If there are only general bequests, then they are distributed proportionately. Example: If A, believing his estate is worth about $300,000, leaves $100,00 in his will to both the Red Cross and Habitat for Humanity, and the rest of his estate to his daughter Jane -- but A dies with only $250,000 total – the Red Cross and Habitat (specific gift recipients) will receive their $100,000 each but Jane will only get $50,000 (the residual gift person). The residual gift has been “abated.”

INTESTATE SUCCESSION

If a person dies without a will, or what the law calls “Intestate,” or if the will is invalid, his property is distributed pursuant to the state’s intestacy statute to the decedent’s heirs. Usually it is distributed first to the spouse, children, lineal heirs, collateral heirs, and other next of kin. If there are no surviving relatives, the estate escheats[footnoteRef:4] to the state. Any person, of course, can expressly leave his or her property to exactly the persons or organization desired simply by executing a legal will. [4: Reversion of a property or monies to the State if their owner dies intestate without any heirs, or when a bank account remain inactive for a certain number of years and the efforts to contact the account holder prove fruitless. However, the money in the bank account (less any service charges) can be redeemed if the account holder reappears. From French 'escheoir,' to devolve. ]

IRREVOCABLE TRUST

A trust is a legal arrangement in which a person, called the “settler” or “trustor” or transferor delivers and transfers certain of his property to a trustee to hold for the benefit of a beneficiary. Trusts can be created during the lifetime of a trustor (for tax and other reasons) and become effective while the settlor is still alive or at his death. The trustee collects money owed to the trust, handles investment of the trust monies, and makes distributions to the beneficiary. The property in the trust is called the trust corpus. A trust, when created, is considered an irrevocable trust – cannot be changed – unless the trust documents reserve the right to change it and it is therefore called an irrevocable trust.

· Beneficiaries: “Income beneficiaries” receive the trust income in a trust; “remainder beneficiaries” receive the trust corpus upon termination of a trust. The income beneficiary and he remainder beneficiary can, of course, be the same person (or organization) or the same persons (the settlor’s children, e.g.). Costs and fees of the trust can be charged to the beneficiaries as the settlor wants. The trustee has broad management power over the trust but must carefully invest (as permitted by the living trust), protect and distribute the trust income -- but is sometimes allowed to “invade” the trust for certain major events (e.g. to pay for the college education of a beneficiary).

· “Inter Vivos Trusts”: An inter vivos trust is created and its assets distributed while the settlor is alive. The settlor transfers legal title to the property named in the trust to the trustee and the trustee invests, manages and distributes the trust to beneficiaries as desired by the settlor. The IVT can be for a fixed number of years……or can be one which ends when the settlor passes away - the original trust document will state what the settlor, now the decedent wants done with the property in the trust.

Example: Mr. Jones, the settlor , creates an IVT with cash, stocks and real estate acquired during his business career. Jones names Acme Bank as the trustee of the trust. Jones also names his daughter Landy as the lifetime beneficiary of the income of the trust and Landy’s 3 daughters as the remainder beneficiaries.

NOTE: It does not matter when Mr. Jones dies. The income of the trust will go to Landy as long as she lives. When Landy passes, the entire trust will be distributed and equally split among Landy’s 3 daughters – as Jones wanted when he created his Inter Vivos Trust.

· “Testamentary Trust”: A testamentary trust, unlike the Inter Vivos Trust, is created by will and not executed until after the death of the settlor.

Example: Mr. Smith has built a large estate. He has given lots of money to each of his 4 children and their spouses, financed their houses, etc. etc. Mr. Smith feels he has done enough for the children, who are all quite comfortable, but is very worried about his only grandson, 16 yoa Joey, who he loves very much but also knows that Joey has a tumultuous relationship with his parents. Mr. Smith has a will. When he passes, his will leaves all his property to a Testamentary Trust; the trust is to be managed by his investment broker’s firm and the trust will provide Trust Income to Joey until Joey reaches the age of 25 yoa; when Joey reaches 25, he is to receive all the property in the trust and the testamentary trust created by Smith years before will end.

SPECIAL TYPES OF TRUSTS

· Constructive Trust

A Constructive Trust is an implied trust, created by law to avoid fraud, unjust enrichment or injustice. An Implied Trust is established by a court and is determined from certain facts and circumstances. The court may decide that, even though there was never a formal declaration of a Trust, there was an intention on the part of the property owner that the property be used for a particular purpose or go to a particular person. While a person may take legal title to property, equitable considerations sometimes require that the equitable title of such property really belongs to someone else.

Example: Thad and Kaye are partners. Kaye embezzles partnership funds and uses the stolen money to buy a piece of real estate. In such a case, after the theft is discovered, a court may impose a “constructive trust” -- although title to the real estate is in Kaye’s name, the court will declare that Kaye is a trustee holding the property in trust for Thad, its rightful owner.

· Charitable Trust

Charitable Trusts are trusts which benefit a particular charity or the public in general. Typically Charitable Trusts are established as part of an estate plan to lower or avoid imposition of estate and gift tax. A charitable remainder trust (CRT) funded during the grantor's lifetime can be a financial planning tool, providing the trustmaker with valuable lifetime benefits. In addition to the financial benefits, there is the intangible benefit of rewarding the trustmaker's altruism as charities usually immediately honor the donors who have named the charity as the beneficiary of a CRT. Example: During her life, Janet creates a trust for the construction and maintenance of a public park in her city.

· Spendthrift Trust

A Trust that is established for a beneficiary which does not allow the beneficiary to sell or pledge away interests in the Trust. A spendthrift trust is a specific type of irrevocable trust created for the benefit of a recipient, usually because he or she is unable to manage money and spending prudently A Spendthrift Trust is protected from the beneficiaries' creditors, until such time as the Trust property is actually distributed out of the Trust and given to the beneficiaries.

· Totten Trust

A Totten Trust is one that is created during the lifetime of the grantor by depositing money into an account at a financial institution in his or her name as the Trustee for another. This is a type of revocable Trust in which the gift is not completed until the grantor's death or an unequivocal act reflecting the gift during the grantor's lifetime. An individual or an entity can be named as the beneficiary. Upon death, Totten Trust assets avoid probate. A Totten Trust is used primarily with accounts and securities in financial institutions such as savings accounts, bank accounts, and certificates of deposit. A Totten Trust provides a safer method to pass assets on to family than using joint ownership. To create a Totten Trust, the title on the account should include identifying language, such as "In Trust For", "Payable on Death To", "As Trustee For", or the identifying initials for each, "IFF", "POD", "ATF". If this language is not included, the beneficiary may not be identifiable. A Totten Trust has been called a "poor man's" trust because a written trust document is typically not involved and it often costs the trustmaker nothing to establish

LIVING TRUST

A living trust is a popular means of estate planning that lets a grantor hold property for use during his lifetime and distribute it after death. It is also called a grantor’s trust or revocable trust.

· Benefits of a Living Trust: A living trust lets you avoid probate because the assets are owned by the trust. If a person does with a will, the will must be “probated” so the deceased’s assets can be properly distributed according to the will. A probate judge oversees the process and all documents, including the will, are made public. A living trust, on the other hand, is private – when the grantor dies, the assets are owned by the living trust and not subject to probate. Professor Cheeseman, however, is convicted that the use of living trusts is often promoted for alleged benefits that do not actually exist and notes:

· LTs do not reduce estate taxes more than wills

· LTS do not reduce the grantor’s income taxes

· LTS do not avoid creditors

· LTS are usually not less expensive than wills

· LTs often do not avoid controversies after the grantor’s death – LTs can be challenged just as a will.

· Funding and Operation of a Living Trust: In a living trust, the grantor transfers title of the property (real estate, bank accounts, stocks – whatever) which is to be transferred to the trust to fund it. It is revocable during the grantor’s lifetime. – the grantor can change his mind and revoke the trust and take title back to his property. The living trust names the trustee, who is usually the grantor, and a good Living Trust should name a a successor trustee to replace the trustee (usually the grantor) in case of incapacitation or severe illness of the trustee.

· Beneficiaries: The trust names an income beneficiary (usually the grantor) and also a remainder beneficiary. Upon the death of the grantor, assets of the trust are distributed to the remainder beneficiary. The designated trustee (like the executor of a will or the administrator of an estate of a person who passed without a will) has the important fiduciary duties of identifying assets, paying creditors, paying all taxes, transferring named assets and rendering an accounting of his work.

UNDUE INFLUENCE

A will be declared invalid if it is the result of undue influence. Undue influence may be inferred from the facts and circumstances surrounding the making of a will. Example: If a wealthy 85 yoa woman leaves her entire estate in her will to her new, young lawyer – and ignores all her friends, relatives and favorite charity – undue influence may well be inferred by a Probate Court judge.

Undue influence is difficult to prove by direct evidence and thus the courts look to certain circumstances (such as described above) to detect UI. For example:

· The courts will look to see if there is a trust relationship between the testator and the beneficiary, with the beneficiary receiving a substantial amount of the estate.

· The courts will determine if the beneficiary had an opportunity to exert influence over the testator.

· The will contains an unnatural disposition of property

· The court also looks to see if there is a substantial change from a former will or

· If there is an unnatural disposition of the property.

Case 52.1 Undue Influence: Medlock v. Mitchell.

Facts: Richard Mitchell executed a will leaving his estate equally to two of his children, Mark and Michelle. Four months later, Richard married Glenda Kay. On the same day, Richard created a revocable living trust. The trust was to terminate 10 years after Richard’s death. Upon termination of the trust, the trust corpus was to be distributed to Mark and Michelle. Five years later, Richard was diagnosed with terminal lung cancer. Three months later, he executed another will, leaving his entire $3.5 million estate to Kay. Richard died two months later.

Michelle filed her father’s earlier will for probate. Kay filed Richard’s most recent will for probate, arguing that Richard’s earlier will had been revoked by the most recent will. Michelle responded that her father’s most recent will was invalid because of Richard’s incompetence at the time it was executed and was a product of undue influence by Kay. Kay died pending trial, and her son Jerald pursued the lawsuit. The trial court found that there was a confidential relationship between Richard and Kay, and therefore the burden shifted to Jerald to prove that there was no undue influence in the making of Richard’s last will. After hearing numerous witnesses, the trial court held that Jerald had not rebutted the presumption of undue influence, and judgment was ordered to probate the earlier will leaving all of Richard’s property to his children Mark and Michelle. Jerald appealed.

Issue: Has Jerald rebutted the presumption of undue influence?

Decision: The court of appeals held that given the facts of the case, Jerald was required to rebut the presumption of Kay’s undue influence, which he failed to do. The court of appeals affirmed the judgment of the trial court that enforced Richard’s prior will that left his estate to his two children, Mark and Michelle.

Reason: It is not enough that a confidential relationship exist in order to void a testamentary instrument; there must be a malign influence resulting from fear, coercion, or any other cause which deprives the testator of his free agency in disposing of his property. Undue influence on a testator may be inferred from the facts and circumstances.

That Kay was present both during his convalescence in the hospital while he was dying and during his conversations with his attorney when he made the new will allowed the court to infer the undue influence.

Critical Legal Thinking: A will may be found to be invalid if it was made as a result of undue influence on the testator. Undue influence can be inferred from the facts and circumstances surrounding the making of a will.

LIVING WILL AND HEALTH CARE DIRECTIVE

Technology has greatly increased the life span of people – and the ability of folks to live on when very sick or injured -- in fact, life can continue long after a person is “brain dead.” In 1990, the US Supreme Court held that the right to refuse medical treatment, and to accept the end of life, is a personal liberty of American citizens protected by the Due Process Clause of the 5th Amendment. The Court also declared, however, that this interest must be expressed through clear and convincing proof that a patient did not want to be sustained by artificial means.

· Living Will: A person who has decided that she does not want life artificially prolonged should execute a living will. A living will is a document, executed before catastrophic illness/injury, that stipulates one’s wish not to be kept alive by artificial means. The LW should specify which life-saving measures the signor does, and does not, want. Furthermore, the LW signor can declare that she wants heroic treatments withdrawn if her doctors determine there is no chance of a meaningful recovery. Basically, a living will provides clear and convincing proof of a patient’s wishes with respect to medical treatment.[footnoteRef:5] [5: In Georgia, an attending physician is not lawfully required to follow all instructions in a living will.]

· Health Care Directive: In a separate document from the Living Will, a document called a health care directive or proxy, a person/patient should indicate the person whom you designate to be a health care agent for you in case of your incapacitation. An alternative person/agent should also be named in case the primary agent is not available to act.

· Right to Die: This is the claimed right of an individual to choose to die when they are terminally ill. A controversy over this issue has raged for years: many persons in the USA support the right to die, while others are against laws giving individuals any such a legal right. American law is still evolving. No state gives physicians the right to inject a lethal substance to cause or hasten death (that is euthanasia) but several states now have passed “Assisted-Suicide” laws which permit doctors to help terminally ill patients end their own lives. As of early this year. A total of 6 states (Oregon was the first) and the District of Columbia have given their citizens the “right-to-die.”