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Physician assisted suicide has been a controversial topic across the world, however as the reasoning behind it becomes better understood, many countries have chosen to legalize the practice for reasons outside of terminal illness. In the United States, in the past few decades, the public began to take notice with news headlines such as those regarding Dr. Jack Kevorkian, the Michigan physician who helped assist numerous patients chose when they would die from terminal illnesses and subsequently served eight years for his acts.

Today, physician assistance in dying is legal in Washington, Vermont, Montana, Oregon, with California recently signing in their aid in dying legislation in June 2016, Colorado approving a ballot measure in the most recent November 2016 election by two thirds majority, as well as the District of Columbia signing in their version of the same aid in dying law in December 2016. With a not so surprising passage of these laws comes the realization that Americans as a whole see the reasoning or at least themselves would want the option, in the circumstance they were to become terminally ill.

What is different with the United States’ various aid in dying laws in place is that they are all for those patients that are terminally ill, requiring certain validation steps through physicians and therapists.

When you begin estate planning, there are a variety of options that are available in order to plan how your estate will be distributed and may seem very similar, however, they all have distinct benefits. Two main estate planning tools commonly used are wills and/or trusts, but their main features are very different. When determining which tools are right for you, you should first assess what stage of distribution and what assets you wish to control.

Trusts

There are a number of different types of trust that one may use, depending on what their intentions are. Trusts can be enacted during the grantor’s, also known as the person who made the trust, lifetime, or may take effect upon the death of the grantor. When forming a trust, the grantor seeks to transfer their property to the trust, which is run by a trustee. A trustee can be any number of people, but are neutral third parties who are employed to operate in the best interest of all interested parties involved, including both the grantor and those beneficiaries.

When a deceased individual, known as a decedent, leaves a Will, family members and friends that have reason to believe something may be wrong with that Will may be able to have a court rule that the Will is invalid in some situations. The following are examples of common situations in which a person may have reason to ask a court to overturn a Will, most of which can be avoided by working with an attorney to create a valid Will.

The Will Does Not Comply with Law

There are several specific requirements the person making a Will, known as the testator, must comply with for a Will to be valid in New York. Basically, these include:

Pets play a special role in all our lives; they serve as companions, security, as well as important additions to our families. However, when it comes to naming beneficiaries in your will, it has long been debated on a state level whether pets can legally be named as beneficiaries of an estate, due to their lack of capacity.

Many people name their animals, such as their dogs or cats, in their will, without realizing that, depending upon the state in which they make the will enforceable, probate court may find the provision invalid and treat the bequest as if it had not been named, passing down using the rules of probate court.

In order to effectively name a pet as a beneficiary in a will, there are specific ways of writing the provision that ensures your pet will be cared for after your passing. You can designate a friend or relative in your will to be the caretaker of the pet in the event of your passing. In this provision, you can designate a specific amount of money that will be received for care, for taking the pet, and what will happen upon the pet’s death. The caretaker of the animal will then become the owner of the pet legally, because pets are technically considered living property.

Physician Assisted Suicide and The Election

Physician assisted suicide has continued to be a widely controversial, but popular topic across the country over the past decade. With the presidential election coming to a close very soon, the future of physician assisted suicide, or dying with dignity, may become a more widely spread practice, legal medical practice available to those terminally ill patients. Thus far, The Death with Dignity Act, or a similar version, has been passed in Oregon, Washington, Vermont, California and Montana.

California recently passed the California End of Life Option Act in June of 2016, after years of deliberation, voting and criticism, Governor Jerry Brown ultimately signed the bill into effect in the fall of 2015. Many families are relieved that this may become an option for a terminally ill loved one. What is different about death under this Act, is that it is no longer viewed as suicide, and will legally allow loved ones to retain what their terminally ill family member has designated for them after their passing.

What Is It?

A Discretionary Trust is another type of trust that is commonly used by a grantor seeking to distribute assets to a class of people or their family. Unlike a mandatory trust which requires distributions of income and principal be made according to a set schedule that is executed in the trust document, discretionary trusts allow the trustee to make determinations about when and how much beneficiaries are to receive in capital and income from the trust. Beneficiaries of discretionary trusts do not have entitlement to a specific interest in the trust, they have a right to be considered for the appointment of property or income from the trust

When and Why To Use a Discretionary Trust

A directed trust is a type of investment trust that appoints a particular trustee, usually a bank or firm, to administer specific aspects of the trust. Trustees who are responsible for directed trusts generally have a number of other professionals who assist in their administration of the trust by providing investment recommendations and distribution recommendations to the beneficiaries. By delegating these duties, the trustee as well as the beneficiaries are benefitted because the beneficiaries now are receiving expert advice in areas such as investing, while trustees can focus on maintaining the purpose of the trust and can in some cases limit their liability, depending on the state law.

 

Delaware directed trusts are a specific type of directed trust that is administered in the state of Delaware. Trustees will recommend that a trust be held and administered in Delaware depending on the nature of the assets that a party holds and what they seek to do with those assets. Many advisors or trustees will recommend a Delaware directed trust if the grantor, or maker of the trust, had assets that are concentrated, illiquid or difficult to manage. Illiquid assets are those assets which cannot be sold without a substantial drop in value or assets and are unique in that they are difficult to sell because there is not an immediate demand or interest by investors to purchase the asset. Other examples of concentrated or difficult assets that may be suited for Delaware directed trusts include stocks or other securities which have historical value to the family or that the beneficiaries think will perform well long term. Here, the trustee can continue to be responsible for managing the diversified assets, while an investment advisor can work with the beneficiaries in handling the concentrated asset.
Other benefits of this type of trust involves protecting the grantor’s interest by appointing a trust  protector who will act on the behalf of the grantor to ensure his or her goals come to fruition, which includes the ability to remove a trustee they feel is not following the grantor’s wishes. A distribution advisor can also be appointed to assess what is important in their specific situation when making future distributions. Additionally, in the majority of situations, Delaware’s tax laws apply to trusts as well. Delaware courts also do not require court filings in an effort to maintain the privacy of individuals and grantors can restrict a beneficiary’s access to some information, depending on the situation and trust.

Nationwide

The Death with Dignity Act gained national attention when it Brittany Maynard, a 29 year old woman suffering from an incurable brain tumor, chose to end her life with the help of a lethal dose of medication. Since then, a national debate has resurfaced about terminally ill patient’s ability to decide when, not if, they are going to die. Currently, the Death with Dignity Act has been passed in California, Oregon, Vermont and Washington, with proposals in many more states, including New York.

New York

Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.

Two Wills

Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.

NURSING HOME WORKERS POSTINGS

The December 21, 2015 edition of the Washington Post and had a lead story of nursing home workers allegedly posting “humiliating and dehumanizing” photos on various social media websites, such as snapchat and others. If these allegations are true, they are potentially evidence of a violation of certain patient privacy laws. Washington Post reported on a ProPublica investigation and co-published the story on the same date. The investigation revealed at least 35 documented instances where a nursing home employee secretly took a picture or even a video of a nursing home resident in a humiliating or degrading light and posted them online. 16 of the 35 instances were with snapchat, where the picture appears for a short period of time and then disappears, with no lasting digital trail or record.

Some of the postings led to criminal charges in California. There is always the potential for federal criminal or civil liability charges if the allegations are true. As noted in previous blogs here, nursing homes in particular make the loudest cry when it comes to calls for changes to the laws allowing for cameras in nursing homes, with one nursing home employee union representative stating that cameras in nursing homes “takes away from the professionalism” of nursing home employees and is “unfortunate and creepy and wrong.” Such acts clearly are not representative of the vast majority of nursing home employees who do their job ethically, lawfully and with compassion.

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