Archive for January, 2010
ADVANCE HEALTHCARE DIRECTIVES
Florida law recognizes the fundamental right of every competent adult to determine and decide all aspects of his or her health, including the right to choose or refuse medical treatment. This right is not to be frustrated even in the event of subsequent incapacity of the principal. To further this right, the Florida legislature passed the “Life-Prolonging Procedures Act” in 1992. The Act is now contained in Part III of Chapter 765, Florida Statutes. Chapter 765 authorizes a competent adult individual to create a Living Will in order to direct the procedures that he or she would wish to be sustained or withdrawn in the event of a terminal condition, an end-stage condition, or a persistent vegetative state.
The importance of expressing your wishes is that Florida has adopted the concept of “substituted judgment.” In Re: Guardianship of Browning, 568 So.2d 4 (Fla. 1990). The concept of substituted judgment means that if a now incompetent patient has left instructions regarding life sustaining treatment, the patient’s surrogate must make the medical choice that the patient, if competent, would have made. The surrogate is not to make a choice that he or she might make for himself or herself, or that the surrogate might think is in the patient’s best interest.
As the Florida Supreme Court has noted: “It is important for the surrogate decision-maker to fully appreciate that he or she makes the decision which the patient would personally choose. One does not exercise another’s right of self-determination or fulfill that person’s right of privacy by making a decision which the state, family, or public opinion would prefer. The surrogate decision maker must be confident that he or she can and is voicing the patient’s decision.” (Id.)
Both a Healthcare Surrogate and a Healthcare Proxy must look to any evidence of the patient’s wishes and then substitute the patient’s judgment for their own. If there is evidence as to what the patient would have wanted, that evidence prevails. Only if there is no evidence may the Healthcare Surrogate or Healthcare Proxy consider the patient’s best interest. If you feel comfortable leaving decisions about life-prolonging decisions to your healthcare surrogate, then the law will not second guess the surrogate’s determination of your “best interest”. If you neither complete a Living Will nor Designation of Healthcare Surrogate, a Healthcare Proxy may be appointed for you by the court. In those circumstances; however, there must be clear and convincing evidence that the proxy’s decision would be in your best interest.
The Cramer Law Center regularly advises clients on healthcare directives and end of life decision making issues and prepares designations of healthcare surrogate and living wills for its clients.
MOVIE REVIEW: SUMMER HOURS (L’heure d’été)(A Family Philanthropy Opportunity Missed)
Summer Hours is a French film available with English sub-titles. Although it is a very French film, the estate planning issues which play out are universal.
The family which is the subject of this film is comprised of Helene, the family matriarch, and her adult children, two sons and a daughter. Juliette Binoche plays the daughter and is the most recognizable name in this fine ensemble cast. Helene lives in a beautiful, large home in a small village outside Paris. She has devoted her life to preserving the legacy of her uncle, a famous artist. The home is filled with valuable paintings, antiques and other works of art. The movie title refers to the times the family spends together on summer vacations at Helene’s villa.
On the occasion of her 75th birthday, the children and grandchildren all gather at the estate to celebrate. Helene has recently published a well-received book of her uncle’s work. The family gets along in a genial, but superficial manner. Helene takes a few minutes to talk with her eldest son about her testamentary wishes although she refuses to visit a lawyer to prepare a formal estate plan. The other children are not involved in this discussion.
After Helene’s death, the children meet to discuss disposition of the family wealth. The eldest son wishes to preserve the ancestral home and its treasures for family visits and for future generations of the family to enjoy. He lives in Paris and can look after the estate. However, his brother is moving to China and his sister lives in New York. Their goals are not the same and they vote (2-1) to sell everything. At that point, a lawyer does become involved and advises about the heavy taxes which will be due. Accordingly, some of the treasures are donated to the Musee d’Orsay. The film ends on a wistful note as the children go their separate ways and the eldest son and his wife view their mother’s desk and chair in a sterile setting in the museum. Although sad, the film is not depressing. It is beautifully done, with fine acting, gorgeous scenery and a universal theme – the conflict between preserving the past, the cultural heritage and memories of a family, and the relentless pull of the present and future.
What stands out for me is what wasn’t done. And I am not just talking about Helene’s failure to consult a lawyer to do comprehensive estate planning. As the film ends and the siblings go off in their different directions, the viewer senses that there will be no more “summer hours” for this family. However, if the family had ever sat down together to talk about family values and philanthropy and to make philanthropy an important family business, they may have been able to continue to spend quality family time together into the foreseeable future. The interaction in this family is the typical, surface interaction of many families today. There is a reluctance to discuss deeply held values or to develop a common family mission, which leads to a lack of authentic trust among the family members.
If instead Helene had started a family foundation, perhaps requiring all heirs to participate in a family council which would decide foundation business, the family may have agreed upon a common mission that would keep them strong and together well into the future. Perhaps a fund could have been established to pay for the family travel expenses to attend foundation meetings, so that every family member could attend regardless of their location or circumstances. Then, no matter whether or not this particular home was sold, preserving the family’s legacy and developing a common philanthropic mission could have set the stage for this family to spend many more “summer hours” together. This opportunity would not have been missed if the family had spent time with a legacy oriented estate planning attorney.