As You Wish
An uncomfortable, but important conversation about your estate plan
We are all going to die. And we will likely have loved ones die before us. Despite this constant commonality, talking about dying and about our wishes during the dying process and for after we are gone are not easy conversations to talk about. I talk to clients daily about planning for after death, even I still feel uncomfortable when discussing these topics in my personal life with my loved ones. Talking about death with sincerity and intention makes death feel more real instead of the hypothetical someday we often talk about.
Peace of mind in end-of-life decision-making for another person is hard to come by. There is the constant question: Is this what they would have wanted?
When working with clients, I encourage them to have these conversations with their family even after the legal documents are signed. I want clients to discuss their plan while they are alive because it can prevent conflict after they have passed. I also encourage having difficult conversations because I feel deeply for those left behind, and I want to provide as much guidance as possible with the legal tools available. Using the tools of my trade provides the “what” the individual wants, not the “why” behind the decisions.
The purpose of this article is to highlight topics of conversation I recommend discussing and suggestions on how to start them.
Living Wills and Medical Decisions
A Living Will is a healthcare advance directive. It is a statement regarding your desire for the removal of life-sustaining procedures if you are ever in a situation where those measures are “merely prolonging the dying process.”
Living Wills are commonplace in estate planning, in part because of the high-profile series of court cases popularly known as the “Terri Schiavo Case”. Theresa had gone into cardiac arrest; she was resuscitated but had severe brain damage from lack of oxygen and never regained consciousness. Theresa had left no documentation of her wishes for that situation. Her husband had exhausted treatment options and decided to petition to remove the feeding tube, keeping Theresa alive. Theresa’s parents disagreed with the decision. This case and the various appeals took seven years to resolve.
Whether to execute a Living Will or any other advanced directive is an incredibly personal decision. The situation can be contentious for the patient’s loved ones. Any guidance on what that person would want done in that situation is helpful both legally and in preserving family ties.
I have drafted hundreds of Living Will documents for individuals. As part of the process, I recommend discussing preferences with the people you would want to make decisions for you. The document provides the legal structure and enforcement mechanisms for those decisions, but it doesn’t explain why the individual made them. It doesn’t show the rationale behind the decision and may still leave loved ones with questions about how to proceed.
What to discuss
Religious considerations
Are certain treatments against religious doctrine or other personal beliefs?
Is it okay to remove someone from life support under your religious doctrines?
Do you want a religious leader to be present or to perform any last rites before the removal of any life support?
Concerns and comfort in death
Do you generally trust physicians with your care, or are there a select few you would prefer to be involved in your care?
What would make you more comfortable? Music, specific clothing, items, and medications
If it’s an option, would you prefer to die at home or outside of a hospital setting?
Care for the body after death.
Other medical documents to consider preparing with a medical professional, if appropriate
Iowa Physicians Order for Scope of Treatment
Do Not Resuscitate Orders
Burial Preferences
Iowa’s Final Disposition Act (Ch 144C) does not let a deceased individual control the disposition of their remains beyond designating who is in charge of making those decisions. If there isn’t a legal document designating who the decedent wants to make the designation, it defaults to the priority of next of kin as listed in Iowa Code 144C.5
Designated Power of Attorney
Spouse
Surviving child or the majority of the surviving children
Surviving parents of the decedent
Surviving siblings of the decedent
Surviving grandparent
A person in the next degree of kinship.
If the Next of Kin outlined above does not reflect your desired decision maker, then a power of attorney for disposition may be appropriate.
Even with decision-making authority properly sorted, questions can remain, ranging from embalming preferences to what color of flowers. If you have the means, a prepaid funeral plan can address many of the questions.
I think conversations about funeral and burial preferences can be very rewarding. It is a great opportunity to connect with your loved one. Why do they like that type of flower? What pictures do they like and which do they dislike? What stories do they want included in their obituaries? While the underlying reason for the discussion is melancholy, those moments of connection with a loved one are so special.
Unequal Treatment or Exclusions of Beneficiaries
There are reasons to treat beneficiaries differently in an estate plan. The disinheritance of a child doesn’t always come from malice or from a broken relationship; it can be a form of protection. Sometimes the reason for unequal treatment is emotionally based. Here are common reasons I’ve seen for disparate treatment:
A person is disinherited because inheriting money would disqualify them from receiving government benefits.
A Beneficiary has a history of battling an addiction to substances, alcohol, or gambling, and having a large inheritance brings those concerns to the forefront.
One beneficiary has received assets or funds during life, while other beneficiaries haven’t received the same gifts.
Some beneficiaries are better off economically than others, so they don’t need the money.
One child farms and the rest don’t, and there aren’t enough non-land assets to equalize the distribution.
Perceived or actual estrangement.
Prioritizing the firstborn
Give everything to the responsible child and trust “they will make it right.”
No matter the reason, when beneficiaries are treated differently, it can be hurtful. This is especially true if the beneficiaries don’t find out until after their loved one is already dead, and there is no longer any opportunity to discuss it with their loved one.
As a solution, I’ve had clients ask me to include language in their estate planning documents to explain their decision-making process. In my practice, I do not include this type of language in the documents I draft. I want the legal intentions and implications of a Last Will and Testament or a Revocable Trust to be as clear as possible. Including unnecessary language can confuse the intentions and leave room for dispute. Instead, I recommend explaining to the beneficiaries why the decisions were made and what expectations they have after your death.
How to have these conversations
Round table discussion
This seems like both the best and the worst option to have this discussion. On the one hand, everyone involved is present and hears the same information, but on the other hand, conflict can easily spark. To try to keep things on track, I recommend having only the necessary people in the room (i.e., in-laws are not invited). It may seem silly, but having a talking stick (where only the person holding the item can speak at that time) can prevent people from talking over each other or asking questions before you’ve said everything you want to say.
One-on-one conversations
This is much more approachable than a large meeting. It allows individuals to go at their own pace in accepting that these conversations need to happen and embracing the discomfort.
Write it down
Sometimes people determine that things are better left unsaid, or they cannot have these conversations. In those situations, I recommend writing it down. Make a list of what you want for a funeral. Find a death planner or a final wishes notebook you like to write in, and write down what is important to you. Write a letter to be delivered after death to your disinherited or “shortchanged” beneficiary, not to disparage or try to hash out decades-old problems, but to explain the reasons for your decisions. Record video or a voice recording if writing doesn’t work for you. Keep them with your estate planning documents, or entrust them to a neutral third party to distribute to your loved ones at the right time.
Death and dying are scary, and discussing them is difficult. Talking about things can make them less scary, and leaning on loved ones can make it feel less lonely.
Looking for a place to start your estate planning journey? Book a Consultation or a Will in a Day® appointment today!
Michelle Christen is an Associate Attorney with Hope Wood JD.
She specializes in Estate Planning and Probate
