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Elderlaw: 08/01/2011

Elderlaw Advocates



Dear Len & Rosie,

I was advised to plan out a will, which I have done, but I have a problem. I am not a rich lady, and my will was done for me by my church at no cost to me. In the event of my death, I want my wishes to be carried out to the letter. I donít want any of my immediate family notified of my death. Is there a way to prevent this from occurring?

I also do not want an autopsy on my body, as I feel that it would be disrespectful, and itís my body and my choice, not their choice. I have had arguments with the coronerís office about this. I told them I would even put it in writing that I donít want an autopsy even in the event my death is considered suspicious. It didnít seem to matter to them.

Is there any way to make sure that my wishes are carried out?

Tammy

Dear Tammy,

Thereís no way to keep your death completely secret. If you make all of the arrangements in advance, you may be able to be cremated or buried without the knowledge of your family. But if you have an estate subject to probate, or a revocable trust, then your legal heirs, those family members who would inherit your estate if you die without a will, are going to find out about your death sooner or later. If your will is admitted to probate, they are entitled to notice of the probate whether or not you are leaving them anything within your will. If you had created a trust to avoid probate, your successor trustee would also be required to provide your closest relatives notice of the existence of the trust.

If you want to avoid these notice requirements, you should name pay-on-death beneficiaries for each of your accounts. If you own a home, you could put it in joint tenancy with the person who you want to leave it to, but we strongly recommend that you do not do this. You may change your mind some day, and if you do, youíre stuck because that person may not be willing to give your home back to you.

If you havenít done so already, sign an advance health care directive naming someone you trust as your agent for health care decisions. This personís legal authority will continue even after your death with respect to the disposition of your remains. Your agent for health care decisions will also have the legal authority to grant or deny permission for any discretionary autopsy.

However, everyone is subject to the law, even after we die. If your physician is unwilling to sign off as to the cause of your death, it is likely that the coroner will seek to perform an autopsy. And you can count on an autopsy being performed if it appears that you died as a result of foul play regardless of your wishes. In this respect the law considers the interest of the people to find and punish your murderer to be more important than your right to privacy with respect to your remains.

Consider it this way: You have a lifetime to prepare for your final reckoning, but when you pass away, itís more or less out of your hands. Regardless of what happens to your spirit, what happens to your corporeal remains and your belongings is governed by the law. And while it is possible, with some difficulty, to live a private life, it is much more difficult to die a private death.

Len & Rosie

Dear Len & Rosie,

My mom died last year and she left me as the beneficiary of her trust. I transferred my name to her home after her death and her name was removed. She received Medi-Cal and now they want to place a ďvoluntaryĒ lien on the property. Can they do this even though my name is on the property and can I force their hand by insisting on an ďinvoluntary lien?Ē

Robert

Dear Robert,

When a recipient of Medi-Cal or the surviving spouse of one dies, the executor or trustee or whoever is dealing with the estate is required to notify the California Department of Health Care Services (DHCS) of the death. You do not have to notify the eligibility worker at the county office. Thatís the ďRight Hand that Giveth.Ē You need to mail a Certificate of Death - save 15 bucks and send a photocopy - to the ďLeft Hand that Taketh Away,Ē the DHCS Estate Recovery Section in Sacramento.

Theyíll then send you an estate questionnaire asking for information about your motherís assets. Legally you donít have to respond at all, but if you donít, theyíll just send you an actual estate claim. If the recipient or surviving spouse owns any assets subject to estate recovery, such as your motherís house, DHCS will assert its estate recovery claim against the trust, or the estate, or whomever winds up with the property. In this case, you.

The amount of the claim is what Medi-Cal spent on your mother in a nursing home at any age, and also what it spent on her for other Medi-Cal benefits paid after her 55th birthday. The only way to avoid the claim is if she died owning nothing at all, or if she was survived by a blind, disabled, or minor child.

You may wish to review the estate claim with an attorney first, but from what youíre telling us, you are probably stuck. If you donít make arrangements, DHCS will refer its collection claim to the California Attorney General, and theyíll eventually sue you for the money. Keep in mind that this is a civil lawsuit and not a crime. Thereís no risk of going to jail. If the State sues you and gets a judgment against you, that judgment will earn interest at the legal rate of ten percent. A voluntary lien is better than that, because it earns the State only seven percent interest. If you can borrow money at less than seven percent, itís probably best for you to do so. Youíll save money in the long run.

Itís unfortunate for you that you didnít write to us before your motherís death. It was possible to shelter your motherís home from Medi-Cal. Up until her death, your mother could have transferred the home to an irrevocable trust to legally avoid the Medi-Cal estate claim. Even if she were incapacitated it may have been possible for you to create and fund an irrevocable trust as agent under her power of attorney. Weíve been using these trusts with considerable success since 2003. They work well, but regretfully, itís too late for you to create such a trust now.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, 1-2 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.


Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.
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