Online resource center to help you explore these key issues, and others, regarding your estate.

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Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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VA Pension/Aid & Attendance/Medi-Cal

Mr. Miller has been active in the area of VA Pension and Medi-Cal for well over a decade. He uses various specialized types of Trusts as well as non-trust strategies to gain eligibility for his clients and save the family money.

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Probate & Estate Administration

Mr. Miller has been settling estates (both simple and complex) for well over 40 years. The starting point is always to create a strategy to settle the estate in the most efficient manner possible with a minimum of taxes. Often times the strategy created allows the family to bypass Probate Court proceedings.

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How Effective Is My Directive?

By merv,

  Filed under: Blog, Estate Planning

Often people come in to ask for an “estate plan.” Sometimes, they have an idea of what a comprehensive estate plan should include. Other times, they simply have a vague notion that a trust of some sort is probably helpful. However, healthcare planning is a large part of the planning process.

The VA offers a Power of Attorney (POA) for healthcare and often requests that the patient fill one out to designate healthcare agents before they receive VA medical services. This POA is effective only within the VA. In the event of an emergency, if you are admitted to another healthcare facility without your agent’s knowledge, your assigned agent will not generally be recognized by that institution, especially if your chosen agent is not a family member. In fact, the VA has different rules for financial powers of attorney as well.  Even if you have designated a POA with the VA, you should still prepare other healthcare planning documents.

Generally, your attorney will prepare an Advance Health Care Directive (AHCD) in which you designate agents for healthcare who will be accepted by any hospital or healthcare facility. However, one of the basic qualities of an “agency” relationship is that your agent is standing in your shoes to make decisions. Your agent may not make healthcare decisions you would not be allowed to make if you were able. Similarly, your agent is allowed to make any decision you would be allowed to make.

Unlike a trust, an AHCD is not binding. The directives you offer within the document, such as an order to withhold artificial nutrition, is really simply a statement of preference. Additionally, these documents are almost always written with broad instructions and a wide latitude for decision-making. The AHCD is written to help your agent apply your preferences to your situation as it arises. For example, if you state that you do not wish to receive artificial nutrition and hydration under any circumstances, your agent may consult with your physician and direct that you receive the treatment anyway because the agent has determined it is what you would have wanted under the circumstances. The point is, the document can only do so much.

This is where you come in. When you choose your agent, it is important that the agent understand the types of treatment you would want, and exactly what you would not want. It is important that the agent will put your desires for dignity in illness and death (or your religious beliefs as applicable) ahead of their own desire to save you. As with all your estate plan documents, you should ensure that the person you choose is willing and able to carry out your wishes.

Occasionally, you will find that your agent(s) just can’t bring themselves to make the decision to withhold or withdraw vital treatment, such as life support. This is where a Directive to Physicians  or a Physicians Order for Life Sustaining Treatment (POLST) comes in.  The former applies if you have chosen a cut-off point for life-saving treatment, generally when your hope of recovery is almost non-existent after ample time for observation, and in that situation you may give a particular physician or group of physicians the power to end treatment even when your agent will not. Doing so may offer your agent additional peace of mind. The POLST is a pre-signed physician’s order for certain treatment or non-treatment.  Some states authorize one form, others another.  Regardless of which documents you have, it is important that you verify that it correctly states your desires and that you have communicated them to your agents. As uncomfortable as these conversations may be, undesired medical treatment is less comfortable!

Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things… FREE REPORT: This complimentary report, focused on Estate Planning, is comprised of many of Mr. Miller’s articles from his long running column for the largest regional newspaper in San Diego County. This report will guide you through the questions surrounding getting your estate planning in order.

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning

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