Will your wishes be followed

0:00 Welcome to something more with Chris Boyd. Chris Boyd is a certified financial planner, practitioner, and senior vice president, financial advisor at wealth enhancement group. One of the nation's largest registered investment advisors. We call it something more because we'd like to talk not only about those important dollar and cents issues, but also the quality of life issues that make the money matters matter. Here he is your fulfillment facilitator, your partner in prosperity, advising clients on Cape Cod and across the country. Here's your host, Jay Christopher Boyd. Welcome to the program. Something more with Chris Boyd. I'm here with Jeff Perry and Russ Ball. We are of the AMR team at wealth enhancement group and glad to have you with us today.

0:45 Our subject is a living will. I think we're going to talk about for the most part. And, um, I came across an article, um, that was, uh, from the wall street journal called, she signed a living will her sister didn't honor it. And I just thought, uh, this is a topic that's kind of, uh, of interest. And it prompted me as we were thinking about talking about it. Um, have you guys started watching the pit? Um, uh, HBO max, uh, television show, Noah Wiley. No, he's the, uh, ER guy. Yeah. He was on ER.

1:25 They actually sued him. Uh, the, uh, state of Michael Crichton or something for, uh, making a rip off of ER apparently really. Yeah. So it's a pit, a rip off of ER. Kind of, um, it's like, it's a medical, it's a medical trauma and it takes place in an emergency room. And so maybe it's a start, right? Yeah. But anyway, um, I I'm enjoying it. And, um, one of the episodes that, uh, we've seen, they, they, they only drop them once a week. So, um, this, one of these episodes had a similar story to this notion where.

2:08 Um, I don't want to ruin it for anybody, but so, you know, I don't know if you're, if you haven't watched it, uh, just spoiler alert, I guess, you know, we're talking about an episode. So anyway, um, the, there was a gentleman, an older, uh, father, elderly father who came in and, uh, had clear instructions as to what he wanted, but the kids were the, um, healthcare proxy agent and, um, they got to choose what, what would be the case. And so the, the drama unfolds with, you know, the medical advice versus, you know, what can they do? What, what should they do?

2:49 Um, some challenging discussions, you know, about when do you let go? You know, that kind of thing. Should we, uh, inform our listeners? We don't know about these terms, what these things we're talking about. Yep. So we're talking about a state planning documents, right? Yeah. So documents you prepare as you're thinking about end of your life and your legacy and passing on, and I think most people have heard of a will that's who gets your stuff, right? Basically what areas you want to get, what part of your financial assets, your real estate, your personal property. That's kind of the basic thing that most people know. Um, some people need a trust, not going to get into that for this purpose, but that also can define who gets your stuff, who handles your finance, your affairs, if you're not able to, that's another document that does some of that as well, right?

3:43 Jeff. Yeah. There's a, well, there's a power of attorney also out there just in case people know these terms, um, which would allow someone to manage your financial affairs while you're incapacitated before you die, a durable power of attorney, if you lose your own ability to manage your own personal financial affairs, and then there's a couple documents having to do with your health and decisions. One is a healthcare proxy and highly recommended that everyone listening, no matter what your age is, you have a healthcare proxy. It's a directive that you give your authority to sounds like it's going to be part of our conversation, but to at least one person as your healthcare proxy, that person can make the healthcare decisions if you are not able to make those decisions as defined by a medical professional.

4:33 So, you know, you're, you get in a car accident. You're not, you're unconscious. You're in a coma. There's choices about your medical care, decisions about surgeries, whatever the situation might be. Your healthcare proxy is authorized to make those decisions for you. And so they are an agent, an individual who can discern what's the medical prognosis relative to what they understand your preferences to be, what they've deemed to be appropriate for you. Yes, they are. As they are an agent, they are supposed to be standing in your shoes, making the decision for you.

5:13 Um, we'll get into it probably in the narrative, but if you appoint to hopefully one is in charge and one is the successor, meaning Sally's in charge, Joey makes the decision. If Sally's not available, if you appoint to both having full authority, you're asking for trouble. What if they don't agree and then how do you deal with that? And does that lead you to court anyway? Or, you know, that's right. You could be defeating what you're trying to do. Um, a sister document to the healthcare proxy is a living will, which is a way for you, the person preparing, having the documents prepared is to state your wishes on how you would like things handled by your healthcare proxy or medical professional, when you're not, if you were not able to make those decisions and sometimes we'll put in there, they don't want to be resuscitated.

6:09 They don't want extraordinary efforts made. They don't want you to be intubated. They don't want whatever it is personal. So it is a written directive defining their preferences, right? Now, why would I have both of these Jeff? You'd have the living will, in my opinion, to direct your health, to give information to your healthcare proxy that is definitive, like if you just appoint a healthcare proxy and don't, some people appoint a healthcare proxy and don't even tell the person they're appointing that they're a healthcare proxy, that's not the way to do it either. But if you appoint your healthcare proxy, you should have a conversation with them about why they're the healthcare proxy.

6:54 Some of the, if you have unique circumstances, share it with them and you can enshrine those items, those wishes, those desires in a living will that help your healthcare proxy make the decisions that you would have made if you were able to make them yourself. Yeah. And it's important to note that not all jurisdictions approach this the same way. Correct. Uh, some states, uh, advocate the agency approach, the having a healthcare proxy, a decider, a decision maker on your behalf, and some states, uh, prefer a written directive as the preferred approach.

7:40 So, um, if I recall, um, I think I've heard my brother mentioned this at, uh, um, at a seminar, for example, I think Connecticut prefers the, uh, living will. Whereas Massachusetts prefers the healthcare proxy. So you might want both also, right? Because what if you're not in the right jurisdiction, right? I think you want both for sure. And even if you're in a jurisdiction that favors one or the other, think about, think about putting that burden. Maybe that's not the right word for every, everyone, but think about putting that decision on a loved one to make those decisions for you, if you're not able to, what a tremendous benefit it is.

8:30 If in your living will, you have been very specific, like do not resuscitate, do not, whatever it is, or you, or it could be, I'm thinking I'm showing a bias here, or it could be the opposite. Use every measure, use all resources, right. You know, I had a friend whose mom was, um, very ill. She, um, had sepsis at the time and was, you know, very close to dying. And, um, he had to choose, uh, which approach, uh, you know, should we give her like a, a peaceful passing, you know, try to just make her comfortable.

9:14 Or, um, should they, you know, treat her with, um, all measures available. And he said in his case, he was like, Hey, when you're dead, it's forever, you know, let's pull out all the stops, you know, and, uh, in her case, we did, uh, recover as it turned out. Um, but you know, I think in, there was also some, um, you know, cognitive issues from, um, anesthesias and things like that, you know, that, that had some lasting impact. The, the point being though, different people are, have different preferences and different priorities. You know, how, how do you deal with that?

9:55 At what stage? That's why I call the living well, the sister agreement of the healthcare proxy, because I think in the perfect world, you give someone your healthcare proxy, you tell them about it. You tell them why they, why you selected that person, the reasons and share with them the document and share with them the document of your living will and let them read it and maybe discuss it, not maybe discuss it if you're able to. And so the, so when it's, if it's time for that healthcare proxy to have to make the decision, you're making it a lot clearer and a lot easier for them to make that difficult decision, whichever way it goes. I think that's true.

10:36 Yeah. Yeah. I think as the, the show kind of pointed out, it's, um, much more difficult when you get to that point and that decision has to be made by the, in this example, it was the children. It's like, um, the adult children and they were saying, well, you know, would, would dad really want to give up on what would he want us to give up on him? Yeah. And it's like, oh man, these are, these are challenging times to make really crucial life and death decisions. Emotion filled, you know, driven kind of considerations on the one hand, there was the perception that it was clear he wouldn't want this, uh, um, intubation in this case on the show, and then on the other hand, you know, there's that kind of, well, he, would he want us to give up on him this, you know, emotion, uh, packed, uh, positioning of the, of the dilemma, you know?

11:32 Um, so yeah, I think, uh, that points to the real challenge of trying to identify, uh, who's the right person to be your agent, your healthcare proxy. And will they know your wishes? Have you clear made it clear to what extent you'd want to, uh, pursue, uh, extraordinary measures, um, in the event of, you know, your, your inability to make your own healthcare decisions at what stage of life, uh, do you go from saying, you know, pull out all the stops to, um, you know, well, I've led a full life, you know, I, I wouldn't want to.

12:17 Um, you know, have X, Y, or Z, you know, these decisions are not stagnant. If you're a 35 year old mother of four, you'll probably have a different view of that if you're a 95 year old widow and living in assisted living. Yeah. That's a great analogy. Just your, your PR, your perspective on these things may be different at different moments in time. Um, and the, the extent of life you've lived, you know, one thing that I've seen, um, which I think is worth noting is when you're preparing your estate documents, you might be thinking about who am I going to appoint to take care of these things, um, whether it be a will power of attorney, a healthcare proxy.

13:01 And sometimes people just think of that one person, like we'll take care of this. It's prudent to, to consider that maybe one person's great to handle the financial stuff, but one person's great to organize in a state. But that person may not be the right person for the healthcare proxy. I think that's an excellent point. I agree with you completely that we see that, uh, often that it's like, Oh, the oldest, right. You know, uh, and it's not, it might not be the right one, you know, and, or, or the nearest closest, someone who's nearby. Um, and at times I think, you know, you can see how there'd be an element of, um, practicality that, Oh, the person who is most involved in my life because of proximity should be the one who'd be best able to manage my bill paying or, you know, financial affairs because they are here.

14:00 Right. And there's some truth in that probably on the other hand, um, different people have different skillsets and different, um, deficits, let's say as well. Right. That's right. Um, so you have to be really deliberate about that. There's also the risk, uh, sometimes that the, uh, the siblings who are not present will perceive, uh, undue influence or something like that sometimes. Uh, but, uh, are they stepping up even though they're not nearby? These, these are really challenging, challenging issues too. It can be, it can be. And I know you've seen it, Chris, um, in your various experiences is death and legacy and healthcare decisions can be a point of strife in families.

14:54 Yeah. And so having these documents and having these conversations about these documents while you're alive can really go a long way to avoiding those, that family strife. Yeah. I think you're, you, you're right. An ounce of prevention, um, worth a pound of cure in that scenario that elaborating on why, just to say I've made this decision and here's why sometimes can really be valuable to particularly the siblings who aren't the person that you've chosen for one thing or another. Um, it can, it can add a lot of value. So they know that you did give it consideration and maybe there's a great reason why you said, I don't want to place this burden on you or, or whatever it might be, you know, um, not enough going on with what's going on in your family or whatever, you know, that kind of value judgment about your ability.

15:48 It's another reason. Yeah. I didn't make a mistake too. Sometimes if there's not that communication, sometimes a child, it's as a group of children may think that there was a mistake or undue influence, right? They made that decision because I've lived far away or, you know, whatever the, you know, whatever the situation might be. I agree with your point though. Um, it's probably a good idea not to have one person fill all of those roles many times that, um, you can have, um, you know, someone who's going to be, um, handling the affairs of the state.

16:28 They don't call it executor anymore. I forget what it's called now, but personal representative. Thank you. Um, you know, that, that could be one person, but the healthcare proxy could be someone else. And, uh, when it comes to, uh, a trustee, you know, you could have, uh, more than one, you could have, you know, it could be different reasons to have one. It doesn't have to be a family member either. Yeah. Yeah. You know, sometimes it's, it's better. Not if you have, if you have the fear as the grantor that this could cause strife and that could be disagreement, maybe a professional trustee, if that's not the first choice for many people, but maybe a professional trustee, or maybe someone who's not in the beneficiary line.

17:14 So there's no motive other than fulfilling the wishes of the grantor. And just because someone has this role, it can create, um, tension as you mentioned earlier. Uh, and that can be a reason to think about, um, some outsourced resource for some of these things, because let's face it when, um, someone passes a lot of emotional baggage bubbles up and, um, you know, you always were, you, I never, you know, this kind of stuff kind of pops up a little bit. And, um, when it comes to, uh, everyone in the family may have different financial capabilities, different, uh, uh, family dynamics of what's going on with their, you know, their kids and their, their financial life.

18:04 And so, um, you know, I think sometimes you, you want elements of transparency. Uh, on the other hand, there needs to be clarity of who's in charge and who gets, who has the decision making capability. Um, you can find that, uh, heirs want everything to be resolved instantaneously. Um, but that's just not the way it works. Unfortunately, it takes time to go through a probate process, or even in the case of a trust, uh, that can not, you know, happen instantaneously where there's a graph, there's a number of things that need to be accounted for before, uh, you, you maybe disperse assets or, you know, make sure we, we have enough for any tax considerations that might be an issue and whether it's income taxes or estate taxes or whatever may be.

18:57 So yeah, so there have to, there's a sort of a process and, um, sometimes people can perceive, oh, they're dragging their feet and, you know, there's some, you know, discontent, you know what I mean? So, um, you know, I guess it's, it's easier from, you know, if you're not the person, it's easier to be critical, right? Uh, whereas the person who has all the responsibility has to follow these kind of various considerations and rules and process of the whole thing. So Russ, it sounds like you've watched the pit or watching. Yeah, I am watching the pit. Yes. Is there two healthcare agents in this scenario?

19:40 Yes. Yeah. So it's both, both two siblings and the brother seems to know better, right? Yeah. The brother, the brother, uh, no, he thinks, no, no, he seems to know what the father really wanted, but he's acquiescing to the, to the sisters. Emotions. Yeah. Is there a living, is there a living will in the discussion or just not in this discussion? Yeah. Okay. Was there, oh, there was a direct advance directive. Yeah. It'd be a living will as we commonly call it in Massachusetts. Yeah. The doctor was, you know, encouraging them to, you know, is that really his wish or what's his, what's, what are his actual desires?

20:22 What a tough spot for doctors too. I mean, you know, we're just thinking about the family members, but doctors. Well, they threatened the lawsuit, right? They were like, well, the, um, the kids threatened to sue the hospital if they didn't honor the daughter in this case, threatened to sue the hospital, the healthcare proxy honor her wishes. Right. Yeah. Yeah. So they were like, okay. Sounds like a law school, uh, case study. Yeah. On this kind of thing. Right. It's like, it's, it's a good, you know, it's entertaining of course. And you know, it's not you in the sense that it's, you know, you really can relate to these characters.

21:03 Right. That's what I mean. You know, um, but at the same time, it is a good thought exercise. Can be informative to your own situation and what might happen if you had to pass. Right. Right. And this is something we talk about. I am going to watch the show. We do have max and sounds like something that we would enjoy. But this is something, when we talk about financial planning and things that ways that we assist our clients, this is something we talk about initially and meaning estate planning. And in every annual review that we do with them, like life changes, right? Anything change in your life? Is your estate planning settled?

21:47 And, you know, this also brings up the subject of my, I know I'm going on tangents, which you know better. You hired me. You know, this goes into a subject that we'll probably be talking about in other episodes. But should there be a family meeting? Yeah. Yeah. Right. I think that's a good point. It does. It does lead to that kind of thing. How much if with a little bit of. Advanced conversation, can some of these things be put out there and and have greater sense of clarity around it?

22:28 Yeah. And that doesn't mean that you're disclosing as the as in this case, the father, if he was to if he did have a family meeting, the father in the pit, which I haven't seen. Yeah. Well, and the challenge in this particular case was he would have had to have the meeting five years ago, you know, I mean, or whatever. Because he was starting to have issues of dementia and, you know, moments of clarity, but not always, you know, that kind of thing. Which makes it even more complicated, right? Yes, exactly. Family meeting could be when you prepare your estate planning documents as you as you're getting older and you're like thinking about your legacy.

23:08 And, you know, if it's more it's growing more possible each year that these documents might be needed or it could be in the context with your financial advisor as well or both. Yeah. Yeah. I mean, it's funny you mentioned before that. You know, people will have the occasion on another, I think, episode where we talked about the idea that there are times when people will be just like, oh, no way, no how I'm not going to have long term care. Right. You know, and we have these kind of conversations with people periodically thinking about how would you want things to be handled?

23:48 And sometimes they're, you know, thoughtful, deliberate, elaborated on. But other times it's kind of impulsive. Right. Flippant a little, you know, like that try to make light of it, you know, like they don't want to don't want to really get into the particulars. And yeah, dismissive in a sense. But it's I think it's challenging. Go ahead. Yeah. Yeah. I think in our field and, you know, we think of this as a very objective thing. We think the importance of planning and having a plan in place. But, you know, for a lot of people having these conversations, even thinking about, like, big picture things like estate planning, who's going to take care of my needs if I'm incapacitated?

24:34 Like, those are very challenging things to consider, let alone talk about, especially to family members. Sometimes, you know, even kids don't want to hear it from their parents. Oh, no, let's not let's not go there like la la la la. Yeah, exactly. So whether it be the parents or the kids or whatever the situation may be, those are challenging. They think sometimes don't talk that way. Like, oh, you know, don't talk that way. You're going to be around, you know, that kind of thing. But I think that's a good point, Russ. All these things that we brought up in this in this episode are like, these are the reasons why it's important to consider it, even though it's very difficult, you know, and I think we're you know, we want to appreciate that. But it's it's a difficult thing to discuss. But it's crucially important to to talk about it now while like we still can while we don't have to make those decisions.

25:19 You know, yeah, you can talk about it in a little bit of an abstract way, even though we know there's an element of this that might be relevant to, you know, we've had that occasion where we talk with clients about their health care because we know there's an issue. Yeah, and it's hard to talk about that or or when someone knows their terminal or something, it's it's very challenging to have that conversation. But it's really important to sort of have the opportunity to say, OK, so how will this work? What will happen and get that benefit of that insight and what their wishes might be and and and some of the planning they've done and all the rest of it that, you know, we we can.

26:03 Knowledge is power, right? And we can we can be more in control by knowing what the plan is and how it's going to work and what's intended and all the rest. And it's important. It's not always easy. When I was practicing law and preparing estates for clients, I would often frame this meeting with the client as they're about to do this is it's a gift. It really is a gift that you're providing to your family by by thinking about this, by preparing documents and by having those conversations after the documents are prepared with the people that you select. It could avoid it's going to make your transfer your assets easier.

26:48 It's going to make your likelihood of six strife in the family less, and it's going to improve your legacy that what you're trying to be remembered for by having a really comprehensive estate planning in place when you pass. Well, I hope this has been a helpful conversation for our listeners and some of the things to be thinking about when it comes to your planning, the people you involve in your planning. It's really important to have the right kind of estate plan and the right kind of estate planning attorney that's geared toward this. There are multiple types out there, and I think to some extent, having that conversation with your financial planner to start with can help you navigate.

27:38 Are you looking for an estate plan that's geared toward Medicaid planning? Are you looking for an estate plan? It's not basically a different approach, one that's more geared toward you retaining your wealth and control of it over your lifetime. But with the right kinds of documents like these, both are valid approaches. Different circumstances warrant one approach versus another, and different attorneys are better equipped to deal with different approaches. There are lots of attorneys out there that handle real estate transactions and divorce and litigation or whatever it might be.

28:18 There's different areas of expertise. And estate planning and elder law, these tend to be the issues that retirees want to kind of evaluate. But that focus toward a Medicaid approach versus use of a revocable trust, a living trust, these are different approaches. And you may want some conversation around, which is the right kind of path for me given my resources? And that can involve some of these conversations about control and what would you want to see happen? How would you want this to play out?

28:59 What's a greater value to you when it comes to the way you receive care versus the way your wealth is retained intergenerationally? These are not easy choices sometimes. But get some input on that and find the right fit for the right kind of an attorney. And in any case, if we can be a resource in any of your planning and around your portfolio management or when it comes to these kinds of issues, when it comes to estate planning, tax planning, insurance, and so forth, we're happy to be part of that conversation and help you navigate this. You can reach out to us through our website, somethingmorewithchrisboyd.com, we'll get you there.

29:42 Or you can always give us a call, 866-771-8901. Thanks, guys, for a good conversation. Until next time, everybody, keep striving for something more. 866-771-8901 or send us your questions to amr-info at wealthenhancement.com.

30:23 You're listening to Something More with Chris Boyd Financial Talk Show. Wealth Enhancement Advisory Services and Jay Christopher Boyd provide investment advice on an individual basis to clients only. Proper advice depends on a complete analysis of all facts and circumstances. The information given on this program is general financial comments and cannot be relied upon as pertaining to your specific situation. Wealth Enhancement Group cannot guarantee that using the information from this show will generate profits or ensure freedom from loss. Listeners should consult their own financial advisors or conduct their own due diligence before making any financial decisions.