"Divided We Fail" Live Webcast on Jan 16th

On January 12, 2007, AARP (American Association of Retired Persons), Business Roundtable, and SEIU (Service Employees International Union) issued an announcement regarding a new "partnership" to be explained further during a live webcast to be held on Tuesday, January 16, 2007, from 2 to 3 PM.

"These groups, representing over 50 million Americans, are joining forces to influence the political debate on critical domestic issues."

This is the text of the announcement, found on AARP's website here:

Washington, DC – Three of the nation’s leading consumer, business and labor organizations will be announcing that they will work together to urge action from political leaders in a partnership called Divided We Fail. AARP, Business Roundtable and SEIU will use the influence of their over 50 million combined memberships to amplify the message that attaining health and long-term financial security is vital for all Americans and these issues must be included in the national political debate.

This is SEIU's statement on its website's home page, which then is expanded on a separate webpage here regarding its "Vision for Reform":

New Year's Resolution #1: Fix Broken Health Care System

In the coming weeks and months, SEIU, North America's largest union of health care workers, will expand on its efforts to address the nation’s health care crisis by embarking on several high-profile projects to bring business leaders, health care providers, workers, community organizations, and elected officials to the table.

Business Roundtable, on its website here, provides more details as to the webcast:

WHO: Bill Novelli, AARP CEO; John Castellani, Business Roundtable President; Andy Stern, SEIU President

WHEN: Tuesday, January 16, 2007, 2 p.m.

WHERE: The Murrow Room, National Press Club, 529 14th Street NW, Washington, DC 20045

To view the event live via webcast, register here.

Clearly, the political climate in Washington, D.C. for the new Congress is heating up.

New! PA HealthCare DecisionMaking Website

I announce the availability of a new website, PA HealthCare DecisionMaking. Click on the Open Compass to view it.

I hope that PAHCDM will be a useful resource supporting surrogate health care & end-of-life decision-making in Pennsylvania under new Act 169, which will take effect on Monday, January 29, 2007.

With the urging & support of PBI Program Attorney Jennifer Chady Ellis, I constructed the website specifically for the call-in course Personal Health Care Decision Making in Pennsylvania: An Analysis of Act 169, offered by the Pennsylvania Bar Institute on Tuesday, January 16, 2007, beginning at 12:30 PM and lasting until 2:10 PM. See: Act 169 Course: "In the Can" For a Crowd.

As it evolved, I determined to maintain the website thereafter in support of PBI's future distribution or online replay of the course's audio recording, and also as a resource for professionals & consumers about Act 169.

In general, the website has four aspects:

• A complete, but unofficial, statement of the new Chapter 54, of Title 20 of the PA Probate, Estates & Fiduciaries Code, section by section, with internal cross-references;
• Legal background information, including cases & statutes, regarding representative and end-of-life health care decision-making;
  
• Extensive Pennsylvania legislative background material, developed since 1998, leading to the enactment of Act 169 in 2006; and
• A "web portal", of sorts, that provides links to organizations, resources, articles, forms, and other information on the expansive, multi-disciplinary, aspects of personal health care decision-making.

While constructing the website, I developed two deep impressions.

First, I became humbled by the widespread, selfless efforts extended daily by others in addressing the challenges that arise from illness & death. I am particularly impressed by those who attend to the needs of the elderly & the disabled. Their efforts are channeled through so many groups with different approaches or roles -- medical treatment, rights advocacy, daily personal care, specialized housing, personal & estate planning, religious & spiritual guidance, financial planning, governmental regulation & funding, charitable studies & program development, hospice, and media reporting -- just to mention a few.

Their commitment to these missions -- although conducted very professionally on the surface -- really evidence, very simply, love & caring for others.

Second, I became overwhelmed by the enormity of the challenges that we must anticipate addressing in the future. Consider:

• The number of folks to be affected by aging issues;
• the level of financial expenditures required to be incurred;
• the complexity of the medical treatments that can prolong life or, if withdrawn, end it quickly;
• the intricacy of basic legal rights to be resolved in individual cases; and
  
• the importance of spiritual presence in the midst of these other considerations.

So, if you can access the PAHCDM website freely now, why would you register for the course?

For two basic reasons:

1. The course will orient you quickly to the PAHCDM website and to Act 169, so you will be less "overwhelmed" with the material available, and so you can function better as a professional in addressing these issues yourself; and
2. Just as Bob Wolf, Harriet Withstandly, Barbara Holland, & I each donated time to creation of the course to become a standing resource, you can contribute -- by your registration for the course -- to support the organization, PBI, that made it possible for you to learn in this manner.

I hope that you can participate in the course -- at the conference or during a replay -- and learn something from the new website. Think of it as "legal shareware". You can register for the course here.

UPDATE: 01/14/07:

I made this posting early on Sunday morning, January 14th, 2007, labeled for a date of Monday the 15th. Then I sent a copy to Professor Gerry Beyer for the Wills, Trusts & Estates Prof Blog.

He posted an announcement immediately. See: Website Focusing on Pennsylvania Medical Decisions Goes On-line.

UPDATE: 01/16/07:

The call-in course was successful. 250 people attended by telephone link. Ten more people registered to hear it later. The staff at PBI is very pleased with the presentation.

PBI intends to make the course available online for computer replay, and subsequently to offer an audio CD package of the course. I'll update here when I learn status developments.

UPDATE: 01/17/07:

I just noticed a post by Stan Rule, of British Columbia, Canada on his Rule of Law blog, dated January 14, 2007, as follows:

Neil E. Hendershot, author of PA Elder, Estate & Fiduciary Law Blog, has created a new website entitled PA HealthCare DecisionMaking.

I write about it here because, although the focus of the website is -- not surprisingly given the title -- on Pennsylvania law and legislation, the website has links to all kinds of resources related to health care, elder law, end-of-life issues, and bereavement (to name just a few), which are relevant anywhere. These issues know no territorial boundaries. He has created links to related videos, and movies, as well as articles.

I would love to see someone do a similar website in B.C.

Act 169 Course: "In the Can" For a Crowd

"Personal Health Care Decision Making in Pennsylvania: An Analysis of Act 169" -- a call-in course offered by the Pennsylvania Bar Institute -- will be held on Tuesday, January 16, 2007, from 12:30 to 2:00 P.M.

It was recorded on January 10th at PBI Headquarters. The course is now "in the can".

Good thing, too. More than 170 registrations already have been received by PBI -- the largest number to date for any of its new-format "call-in" courses.

The substantive program will run exactly one & a half hours, with a further ten minutes "live" at the end (2:00 - 2:10 PM) with Bob Wolf & me for questions about Act 169 or clarification of presentation points. (The other two presenters will be at Governor Rendell's Inauguration ceremonies on January 16th.)

In my estimation, the presentations by Bob Wolf, Harriet Withstandley, Barbara Holland, & me are lively, comprehensive, well-organized, & practical . The materials (to be supplied to all registrants by email in advance of the session) are excellent. They include Bob's outline, the website that I constructed for the program, and forms offered for use under the new law.

This is the outline of the topics covered:

• Introductions
• Legal Framework: Case Law (US & PA), and Statutes
• Overview of Act 169 & DNR Reauthorization
  
• Living Will changes
• New Health Care Powers of Attorney
• New Health Care Representative; the Health Care Decision-Making Process
  
• Protections for Providers and Agents
• Duties and Process Required of Health Care Providers
• New Combined Form of HPOA & Living Will
• Consistency of Medical Orders Across Care Settings: the POLST Advisory Committee
• Criminal Penalties, Licensing & Accountability
• Questions and Answers

PBI will offer a further in-depth study of Act 169 in July, 2007; but the Act will take effect on January 29, 2007. So, if you are interested in the topic, register now.

By the way, among the three past popular usages of the phrase "in the can", I intended the second meaning, if you had any doubt.

Definitions of "in the can" per Answers.com

1. In the lavatory, as in He can't come to the phone; he's in the can. The related on the can means "sitting on the toilet." The noun can is used for both the room and the toilet. [Slang; c. 1900]

2. Completed, as in About a hundred pages of her next book are in the can. This usage originated in filmmaking to describe a completed motion picture, when film was literally put into a can or canister. [Slang; c. 1930]

3. As an out-of-the-money finisher in a horse race, where a horse comes in fourth or worse. For example, He had no luck that day -- every bet ended up in the can. [1960s].

Update: 01/16/07:

The call-in course was successful. 250 people attended by telephone link. Ten more people registered to hear it later. The staff at PBI is very pleased with the presentation.

PBI intends to make the course available online for computer replay, and subsequently to offer an audio CD package of the course. I'll update here when I learn status developments.

Update: 01/17/07:

PBI, together with its media partner Legal Span, announced this afternoon that the Call-In Course became available for online replay by all registrants to date:

From: PBI
Subject: Online Seminar ready for Personal Health Care Decision Making in Pennsylvania: An Analysis of Act 169 TeleSeminar

Dear Neil,

You are receiving this message because the TeleSeminar you attended on 1/16/2007 is now available for on-demand listening.

How do I Access the on-demand Seminar?

[N]avigate to your user account to access the seminar. Click on the Launch TeleSeminar button below Personal Health Care Decision Making in Pennsylvania: An Analysis of Act 169 to launch the on-demand seminar.

If you have a question or need immediate help launching this seminar please call 877.880.1335 between 7:00 AM and 6:00 PM CST Monday through Friday.

Update: 01/25/07:

PBI now offers the course in an audio CD format, with a book of the materials. You can learn more about this multi-media course offering and order it, if you wish, here.

See also the PA HealthCare DecisionMaking website, which I continue to update with developments & new resources. In particular on that website, see Commentaries: Act 169 of 2006 for the latest available articles & commentaries available online. I update it frequently.

New Open Online Legal Publications

A new professional publication is offered free online: the Wealth Strategies Journal. The three co-founders & co-editors are Lewis D. Solomon, Lewis J. Saret, & Sy Park Saret. The publication was noted by the Wills, Trusts & Estates Prof Blog on January 10, 2007, in a posting found here.

The stated mission of the new WSJ is "to provide you with the resources you need on estate planning and taxation, asset protection, business succession planning, fiduciary issues, high net worth families and family offices, insurance, investments, marketing, multigenerational values, philanthropy and retirement benefits." The members of the WSJ Advisory Board mirror the practicing professions involved in these client issues.

The first issue, November/December 2006, listed these articles & authors:

• Choices: "Reciprocal Trust Doctrine Threatens Family Decision Making" by Donald Kozusko.
• International Estate Planning: "Michael Collins, Dauphins and Other Approaches to International Estate Planning" by Charles M. Bruce.
• Estate and Gift Tax Developments (Nov./Dec. 2006) by Gal N. Kaufman, Melissa A.R. May, Patrick M. Schoshinski, and Todd I. Steinberg.
• From My Desk: "Federal Transfer Tax Law and the Recent and Coming Elections" by George P. Levendis.
• Succession, An Attorney’s Perspective by Jeffrey A. Galant and Dana L. Mark.
• Select Drafting Issues for High Net Worth Clients by Eric A. Manterfield.
• Decision Making Under Conditions of Uncertainty by Kenneth R. Solow, CFP.
• Premarital Agreements and the Young Couple by Linda J. Ravdin.
• Practical Drafting Under The Uniform Trust Code by Nancy G. Fax.

The authors carry impressive credentials. Their articles offer introductions or overviews on subjects, reviews of decisions, or general approaches in certain planning situations. All articles are short in length, without state-specific details and without extensive citations.

This publication and the new eReport of the Real Property, Probate & Trust Law Section of the American Bar Association (which I discussed on January 8, 2007, in ABA RPPT Section's eReport Online) join other free online resources available to wealth planning professionals & consumers. Other such resources are listed by FindLaw under the heading Journals, Newsletters and Articles in its Probate, Trusts & Estates legal topic, or under the heading Journals, Newsletters and Articles in its Tax Law legal topic.

Such publications follow a trend identified by the Legal Technology Resource Center of the American Bar Association, in its study report "Trends in Legal Publishing for the Millennium: Quality Moves to the Internet" (PDF, 7 pages), by Catherine H. Sanders, MLIS (2001).

That report concluded:

In July 2000 the National Law Journal published "Farewell to Books of Yore". An attorney was quoted in reference to Internet legal research, "If I could have a wish, I would wish for a legal portal that would collect everything that's out there on a legal target… If somebody could do that, I would be on that site all the time" (Shepherd, 4). As legal publishers provide more quality legal publications on the Internet, as law librarians overcome the difficulties of managing an online collection, and as lawyers increasingly see the need for mediation between them and Internet resources the virtual law library will become a reality. As quality legal publishers move to the Internet it will provide new and exciting ways to provide and perform legal research.

Such a trend is now acknowledged by law librarians. In his article Redefining Open Access for the Legal Information Market (PDF, 20 pages, 2006), James G. Milles notes that law reviews generally have abandoned a role of "providing summary and analysis of law for the guidance of judges and practitioners."

Once the chief purpose of legal scholarship, and nostalgically recalled by the bench and bar, this is now hardly a factor at all, at least among the more elite journals. Some journals publish annual reviews of the law in their state or of the decisions of the state’s highest court, but this is generally viewed by legal academics as a lower function — a pro bono service, not real, significant scholarship. Moreover, this role has been largely supplanted by newsletters, bar journals, loose-leaf and online services, and now blogs.

Law schools can change, says Professor Milles:

Law schools, using readily available distribution technologies such as RSS, blogs, wikis, and other collaborative authoring tools, could easily compete with the commercial publishers of many of the legal newsletters and loose-leaf services currently available. One reason for a law school to do this would be to answer the frequently repeated complaint of lawyers and judges that the scholarship published in law journals is of little value to the practicing bar. Law journals once served the function of analyzing and synthesizing developments in the law, as well as commenting on current cases.

Both the new WSJ and this EE&F Law Blog evidence the "sea-change" in practical legal publications.

Full fathom five thy father lies:
Of his bones are coral made:
Those are pearls that were his eyes:
Nothing of him that doth fade
But doth suffer a sea-changeInto something rich and strange.

-- William Shakespeare, from Ariel’s song in The Tempest

UPDATE: 01/13/07:

The Kentucy Law Blog noted this posting in a further posting by Michael Stevens on Saturday, January 13, 2007, entitled "Internet: On-Line Legal Publications Growing Elsewhere".

UPDATE: 01/14/07:

Peter Suber, author of the "Open Access News" -- News from the Open Access Movement, noted my posting on January 13, 2007, as follows:

New OA journal on estate planning

Wealth Strategies Journal is a new OA journal published by Joshua Tree Enterprises. Its inaugural issue (November / December 2006) is now online. (Thanks to PA Elder.)

UPDATE: 02/03/07:

The December-January issue of Wealth Strategies Journal is available online here. These are the posted articles:

• Emotional Issues In Estate Planning: "Planning Considerations In Naming A Guardian For A Minor Child", by Sarah M. Johnson
• Elder Law: "Watching The Watchman", by Lawrence A. Frolik
• Asset Protection: "UTC Section 505(b) - Pandora Opens The Box", by Jonathan E. Gopman
• Drafting A Marital Deduction Trust For Second Marriages, by Sebastian V. Grassi, Jr.
• Delaware Asset Protection Trusts: Basics And Opportunities, by William H. Lunger & F. Peter Conaty, Jr.
• The End Of Bank Secrecy, by Michael C. Durney
• Developing Confidence In Planning, by Henry K. Hebeler
• Reducing Taxable Wealth Yet Keeping It All In the Family (Courts' Views On Best Method To Take Discounts), by Lance S. Hall
  

Beware Email Bearing Benefits!

How would you react if you received the following message, as I did recently?

Assistance

My name is Jenifer Wilson i am a dying woman who have decided to donate what i have to you/ church/charity organizations. I am 64 years old and i was diagnosed for cancer for about 7 years ago, immediately after the death of my husband who lived all his life in America, who has left me everything he worked for.

I have been touched by God to donate from what i have inherited from my late husband for the good work of God, rather than allow my relatives to use my husband hard earned funds ungodly. Please pray that the good Lord forgive me my sins. I have asked God to forgive me and i believe he has because He is a merciful God. I will be going in for an operation in less than few days.

I decided to WILL/donate the sum of $5,500,000 (Five million five hundred thousand dollars) to you for the good work of the lord, and also to help the motherless and less privilege and also for the assistance of the widows according to (JAMES 1:27).

At the moment i cannot take any telephone calls right now due to the fact that my relatives are around me and my health status. I have adjusted my WILL and my lawyer is aware i have changed my will; you and him will arrange the transfer of the funds from my account to you.

I wish you all the best and may the good Lord bless you abundantly, and please use the funds well and always extend the good work to others. Contact my lawyer in the Netherlands with this specified email below and his contact:

Below are the my contact details information’s. of my lawyer Name; JERRY COOPER Email: barristercooper@[removed]

And i have also told my lawyer that i WILLED ($5,500,000.00) to you and i have also notified him that i am WILLING that amount to you for a specific and good work. I know i don’t know you but i have been directed to do this. Thanks and God bless.

NB: I will appreciate your utmost confidentiality in this matter until the task is accomplished as I don't want anything that will jeopardize my last wish. And Also I will be contacting with you by email as I don't want my relation or anybody to know because they are always around me.

Regards,
Jenifer Wilson

please contact me through the email address below jeniferwilson2@[removed]

Okay . . . stop laughing. Get serious again.

What are the tell-tale signs of an email con?

Consider the characteristics of the message above:

• The email message was unsolicited.
• The writer lives in a foreign country.
• The email address is generic -- easily obtained & easily abandoned.
• The sender is unknown to me.The sender does not know me.T
• The writing is inconsistent -- in grammar, punctuation, spelling, composition, & content.
• The writer seeks sympathy from me.
• The writer compliments me, while not knowing me.
• The writer cites Divinity to reassure me.
• The writer offers me something for nothing.
• The offered benefits are exhorbitant.
• The suggested transfers might be evasive or illegal, even if real.
• The writer mentions professionals unknown to me.
• Confidentiality is demanded.
• The writer requests further contact from me.
• The writer presses a sense of urgency.

Measured against common sense -- or just good grammar -- I find such messages humorous. But those selfish, gullible, or desperate enough to reply could become the victims of an online scam.

Crucial personal & financial information would be requested. It would be used for no good purpose, only for fraud, online theft, or even identify theft. Such scams bilk millions from our citizens, many of them seniors.

It's called "phishing". The U.S. Department of Justice reported on the crime in its "Special Report on Phishing", issued in March, 2004. The Anti-Phishing Working Group states the crisis:

Phishing, the act of harvesting personal, bank, and credit information by way of forged email and fake web sites, has exploded in popularity within the criminal sector of the Internet.

The Anti-Phishing Working Group estimates that the volume of phishing e-mail is growing at a rate of over 30%, month after month.

The characteristics of a "phishing" email message are set forth in an article posted online by APWG, entitled "Evolution of Phishing" (PDF, 9 pages). The message that I posted above matches the profile perfectly.

The Federal Trade Commission provides information & tips about "phishing" in its online advisory "How Not to Get Hooked by a 'Phishing' Scam" (October, 2006).

APWG also offers protection tips in its posting "Consumer Advice: How to Avoid Phishing Scams". APWG further urges action by consumers who receive such email:

Always report "phishing" or “spoofed” e-mails to the following groups:

• forward the email to reportphishing@antiphishing.org
• forward the email to the Federal Trade Commission at spam@uce.gov
• forward the email to the "abuse" email address at the company that is being spoofed (e.g. "spoof@ebay.com")
• when forwarding spoofed messages, always include the entire original email with its original header information intact
• notify The Internet Crime Complaint Center of the FBI by filing a complaint on their website: www.ic3.gov/

The one action you should not take, of course, is to reply to the sender of the message.

"Every man is a damn fool for at least five minutes every day;
wisdom consists of not exceeding the limit."

-- P.T. Barnum, American Showman

Update: 04/24/07:

The Pennsylvania Attorney General's Office today posted advice on its website about avoiding email scams. See: "Ask the Attorney General: How can I tell the difference between e-mails from companies I do business with and scams trying to rip me off?".

The answer offers excellent advice:

In today's world, identity thieves are so sophisticated that the e-mails they send look just like legitimate messages from banks and other businesses.

These con artists use hijacked corporate logos and deceptive spam to deceive consumers into giving out credit card numbers, personal identification numbers or passwords, and other personal or financial data. * * *

How can I protect myself from this form of fraud?

• NEVER reply to unsolicited e-mails or pop up messages asking for personal or financial information or requests to "verify" data about your account. Banks, credit card companies, and businesses like Paypal and eBay do not send requests for PIN numbers or sensitive information to their customers.

• Don't call any phone numbers contained in messages purporting to be from your bank or other companies you do business with. Providing sensitive information to strangers by phone is as dangerous as sending it in an e-mail.

• Also, don't open any links or documents contained in these messages - they may route you to a bogus website or download a virus onto your computer.

Article in LawyersUSA on Longer Life Spans

Lawyers Weekly, Inc. publishes Lawyers USA, a weekly national subscription legal newspaper. It also maintains a free web portal at the LawyerUSAonline website where it summarizes & links current "Legal News from Across the Country". The newspaper prints & posts many articles about the trusts & estates field, including a collection of articles, found here, prepared in conjunction with the 2006 Heckerling Institute meeting.

On January 1, 2007, Lawyers USA published an article by Dick Dahl, a staff writer, entitled "Longer life spans alter estate planning". He interviewed a number of lawyers around the country, including me, in writing his article, which focused on the personal & estate planning needs to be filled by elder law attorneys for seniors with extended life expectancy.

With permission specifically granted by Dick (for himself & for Lawyers USA), I post the entire article below. His reporting is more relevant for Pennsylvania than for many other states, given the demographics of the Commonwealth.

Longer life spans alter estate planning

As the life expectancy for Americans lengthens and the country grows grayer, trusts and estates lawyers say they're seeing the demographic impact in the world of estate planning.

Donna R. Bashaw, who practices in Laguna Hills, Calif., had a client who went ballroom dancing three nights a week at the age of 103 - three years before he died.

And attorney Don Rosenberg of Troy, Mich. has a 107-year-old client and many in their 90s - including one who recently broke his hip after falling from a ladder while cleaning the gutters on his house.

"I've had two who have made it to 105," said Robert Freedman, who practices in New York City. "Nobody's made it to 106 yet, but it's only a question of time."

The National Institute on Aging predicts that the number of people at least 65 years old will double in the next 25 years to some 72 million people. Today, the fastest growing age group in the U.S. is what demographers call the "oldest old" - people 85 and older - and their numbers are also expected to double in the next 25 years, to about 10 million.

The U.S. Census Bureau says that about 70,000 centenarians now live in the U.S., and predicts that by 2040 there will be 580,000.

Not long ago, the concept of living out the final years of one's life was a simple matter. At age 65, people would retire with the expectation that they'd die in a few years and leave an inheritance to their children.

"But now there's this big span of years after retirement," said Kate Vetrano, an attorney in King of Prussia, Pa., who was the chair of the ABA Family Law Section's elder law committee for 13 years. "I'm seeing more and more people who, as they reach retirement, see many healthy years ahead of them, and they're making decisions that are quite different than the ones that their parents and grandparents made."

Dementia on the rise

The people approaching and entering retirement now are Baby Boomers. In January 2006, the first of the nation's 78 million Boomers turned 60. And many of them are visiting trusts and estates lawyers with a dual purpose in mind: planning for their parents and planning for themselves.

Often, said Rosenberg, a Boomer's 80-something parent is facing a medical or mental health problem that needs legal attention.

"I've got a lot of people who were in their 60s and 70s when I started my practice in the early '80s who are now in their 80s and 90s," Rosenberg said. "And now it's their children who are coming in and saying that mom needs to go into a nursing home or she broke her hip, or dad had a stroke or he's got dementia."

According to Rosenberg, dementia is a particularly acute problem. He estimates that half of the 85-year-olds he sees have Alzheimer's, which has serious implications for how estate planning for them is done.

"You don't want a person with dementia making medical and financial decisions, so you need to change the estate planning documents," he said.

Freedman agreed that this is a problem.

"When you get over 85, the likelihood of some kind of mental incapacity greatly increases," he said. "So you focus on advance directives, health-care proxies, medical powers of attorney, financial powers of attorney, living wills."

Lawyers say that in the process of planning for their parents, Boomers often begin to take a hard look at their own retirement planning.

"It's a wake-up call for them," said Rosenberg.

Seeing the issues that affect their parents, many Boomer caretakers are crafting plans that encompass asset protection and long-term care insurance.

"Many people who retire at 65 have life expectancies of at least 20 more years, and that's a long time," Freedman said.

Bashaw says she advises clients to think about "how they're going to pay for their own last years. We used to say a good time to start is in your 60s, but more and more people are doing it in their 50s now."

Some Boomers may need to work longer to save the money they'll need for their extensive golden years, she said. The last years of life can be very expensive, and they can reduce or even eliminate the inheritances that people want to leave to their children.

Reaching the end

Another question estate planners must discuss with their clients is how to address end of life issues.

"The law [stands] between the living and the letting go," said Neil E. Hendershot, a lawyer with the Harrisburg, Pa. law firm of Goldberg Katzman. "The law hasn't really addressed the 'letting go' part; it hasn't had to step in and say, 'That's enough medical treatment.'"

He pointed out that the U.S. Supreme Court has made clear - in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) and its refusal to accept certiorari in the Terry Schiavo case - that it "doesn't want to have anything to do with these end-of-life decisions." And most state courts feel the same way, he said.

That's why clients need to spell out their wishes clearly.

Rosenberg said the single most important document for clients to have is a durable power of attorney for both financial and health care matters. The durable power of attorney provides that when the individual can no longer make his or her own medical care and financial decisions, a designated loved one would make those decisions - including desired end-of-life decisions - instead.

"A cadre of lawyers will be focusing on [these] issues," Hendershot said. "There are going to be significant developments in the next 20 years to accommodate this population."

The article can be found online in the Lawyers USA archive for a period of time here.

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com