Will Your Doctor Honor Your Health Care Directives?July 2, 2010
When child star Gary Coleman was taken off life support in May of 2010 by his former wife, Shannon Price, questions arose about whether she was authorized to act as his agent under a living will. In addition to the couple being divorced, it was reported the actor’s advance medical directives stated he did not wish to be taken off life support unless he was in an irreversible coma for at least 15 days. Unfortunately, Coleman’s ex-wife presented herself as his legal spouse and directed Coleman’s physicians to remove him from life support after he was in a coma for only one day. A spokesperson for the Utah Medical Association said a family member’s wishes are more important than the deceased’s living will. Many Americans who have made the effort to execute medical directives would probably be very surprised by this position.
The circumstances surrounding Coleman’s death provide yet another example of the importance of executing a living will and updating it regularly. However, they also illustrate the need to discuss your preferences with your doctor or the administrator of your hospital or long-term care facility prior to any health emergency. When we execute a living will, we often take for granted that the contents of the document will be enforced. But regardless of whether you want life-sustaining treatment or wish to have life support withdrawn, your health care provider may not be legally required to honor the instructions in your living will.
While some states have enacted laws which sanction a physician for failure to follow a patient’s health care directives, other states provide immunity to a physician or health facility that fails to honor a patient’s medical directives, provided certain conditions are met. The laws on this issue vary widely from state to state and the policies of health care providers vary by facility.
The laws of many states currently allow hospitals and physicians to ignore instructions in a patient’s medical directives. In fact, a report by the Robert Powell Center for Medical Ethics issued in 2007 concluded: “…in most states, if you want life-saving treatment – or even food and fluids – there is no guarantee your wishes will be honored, even if you make them clear in a valid advance directive.” Several other published studies also report that advance directives are frequently ineffective in ensuring patients receive the level of treatment they desire, because of the lack of discipline in enforcement of advance directives.
If you are concerned your health care directives will not be followed, consult your physician or the facility’s administrator about their policies. Provide them a copy of your living will and ask them to make you aware of any circumstances in which they would not honor your medical preferences. By discussing these issues in advance, you have an opportunity to change health care providers or revise the legal documents that will allow medical decisions to be made on your behalf if you are unable to communicate your wishes. Consult an estate planning attorney about end of life planning and the laws in your state regarding physician noncompliance with advance directives. To obtain state-specific information and free forms for living wills, advance health care directives, do not resuscitate orders, and organ donation, visit our page on Medical Decision Laws.
Estates Like George Steinbrenner's May Be Too Tempting for GovernmentJuly 14, 2010
With the passing of Yankees owner George Steinbrenner on July 13, 2010, many commentators are suggesting the timing of his passing will allow the billionaire’s estate to escape federal estate taxes. Some are also breathing a sigh of relief that perhaps by being able to avoid the estate tax, the Yankees sports franchise is not in jeopardy of being sold to pay estate taxes. In the past, owners of several sports franchises were forced to sell full or partial ownership positions in their teams to pay estate taxes. However, we should not be so quick to assume the Steinbrenner estate will escape the federal estate tax.
The amount of tax the federal government could collect with an estate like Steinbrenner’s and estates of other wealthy individuals that die in 2010 may prove too tempting for the government to resist. The status of the federal estate tax is subject to the whims of the U.S. Congress. It is quite possible Congress could pass estate tax legislation that is retroactive to the estates of individuals that are deceased in 2010, despite a potential court challenge to such a law. In fact, the publicity surrounding Steinbrenner’s death and the size of his estate may provide a further incentive for Congress to act in passing new estate tax legislation. Given the federal government’s urgent need for more tax revenue, it is hard to believe it will let such a tax windfall escape its grasp.
In 2009, Forbes magazine estimated Steinbrenner’s personal fortune to be worth $1.15 billion. The heirs to his estate include his surviving spouse, Elizabeth Joan Zieg, and four children, Hank, Hal, Jessica, and Jennifer. If Steinbrenner had died in any year other than 2010, his heirs could have expected to forfeit as much as $500 million or more of his estate to the U.S. Treasury. For example, the federal estate tax in 2009 was a rate of 45% for estates exceeding the exemption amount of $3.5 million. For those dying in 2011, the federal estate tax exemption is set at $1 million, with the federal estate tax rate at 55%. But unlike any time since the passage of estate tax legislation, there is currently no federal estate tax for those dying in 2010.
Of course, it is almost certain Steinbrenner established estate tax saving trusts, planned charitable giving, and used other prudent estate planning methods to reduce the tax liabilities of his estate. A great amount of effort was probably devoted to ensuring the ownership structure of the New York Yankees was protected. Nevertheless, if the elimination of the estate tax for 2010 remains intact, it will be a great benefit to Steinbrenner’s heirs. While the capital gains tax will apply to the sale of any of Steinbrenner’s assets inherited by his heirs, that will still be significantly less than the typical amounts paid in estate tax, with the highest capital gains tax rate being 15 percent. His estate will also be subject to any state estate taxes that may apply.
As for the final word on the estate tax for 2010, we must wait to see what Congress does, as with so many aspects of our lives these days.
Update: For an update on the federal estate tax laws for 2011 and 2012, visit our page on Estate Taxes.