On January 1, 2016, California’s Death with Dignity Act will become effective. It is estimated that the Act will provide an option for 1 in 10 people to die with dignity in California.
Why only 1 in 10 people? The reason that this Act is expected to affect such a small percentage of California citizens is that the requirements under the Act are very strict. To qualify under the Act, the patient must 1) have the mental capacity and 2) be suffering from a terminal illness—a disease that will, within reasonable medical judgment, produce death in six months. Additionally, the patient must make 3 requests to a physician: two oral and one written plus at least 15 days must separate the two oral requests.
So what is going to happen to the rest of us? For me personally, I am hoping to die peacefully in my sleep after dinner and dessert which will include lots of ice cream. However, I realize that my hope for a peaceful death may not be in the cards for me, as I know, and will unfortunately be the case for many others. Sadly, the journey towards death can be long and arduous
That is the reason why incapacity provisions in your Trust are so important. If a Trust is properly drafted, it will give your successor Trustee specific instructions as what should be done in the event you are unable to care for yourself or make decisions for yourself. Among other things, the Trust should be clear on the following:
1. How will incapacity be determined? Is it going to be determined by your personal physician or an attending physician at the hospital? Do you want there to be a second opinion?
2. How do you want your assets used during any period of incapacity? Do you want to stay in your home and have in-home care? Is there anyone else that you may need to provide for during your incapacity like a spouse or adult child?
3. If you are not able to stay in your home, where do you want to be? Near a specific child? In a large assisted living home with lots of activities or a smaller home like setting?
4. Do you want a care manager to visit regularly to evaluate the level of care that you receiving? Do you want a private care giver in order to ensure that you have someone to take you to doctor appointments and other outings?
In conclusion, if you have a Trust, you should review its terms regarding incapacity. If the Trust provisions are not what you want, you should consider amending the documents to correctly reflect your wishes and desires. There is no question that the Death with Dignity Act is going to helpful for a few. However, most of us are going to have some period of incapacity prior to death. We may not be able to control our physical or mental health, but we can control how our assets are used to care for us even during periods of incapacity.
If you would like me to review your Will or Trust, I see people every day for a FREE 30 minute consultation in Walnut Creek and Brentwood.
This article provides only general legal information, and not specific legal advice. Information contained is not a substitute for a personal consultation with an attorney. LAW OFFICE OF JOAN M. GRIMES, PHONE (925) 939-1680 1600 S. Main Street, Suite 100, Walnut Creek, CA94513 © 2015 Joan Grimes