We all want to rely on our doctor to fix us, help us make medical decisions, and support us in stressful periods when our health, our partner’s health or our parent’s health is precarious.  In Being Mortal, Atul Gwande, a practicing surgeon and author of three bestselling books, admits that doctors often don’t do these things, explains why, and offers ideas of how doctors could help patients facing end of life decisions. Gawande explains that doctors are taught to save lives, not how to help patients live until they die. Doctors use aggressive treatment to battle death, even when they know there is little chance of the treatment affecting the final outcome for the patient.  He cites research and tells stories of his own patients and family which reveal the suffering that modern medicine can inflict on the dying process.  Gawande admits that sometimes doctors try so hard to extend life that they end up shortening it and reducing quality of life.

After he follows a hospice nurse on her rounds, observes a geriatrician in his clinic, and learns about how nursing homes could innovate to individualize care, Gawande suggests conversations that doctors, nurses, caregivers, and family members should have with frail and or terminally ill people. Gawande knows that these conversations are no easier for doctors than for family members, but when he started having these conversations with patients, he knew he was doing better by them.  A colleague of Gawande’s, a nationally recognized palliative care specialist, Susan Block, trains doctors to talk with their patients.  She suggests that each time a treatment choice needs to be made with someone whose health is deteriorating, the following questions can clarify what treatment steps to take or not take:

• What is your understanding of your situation and its potential outcomes?
• What are your fears about what lies ahead? What are your hopes?
• What kinds of trade-offs are you willing or not willing to make if the worst happens to you?
• How do you want to spend your time if your health worsens?
• Who do you want to make decisions if you can’t?

Asking these questions can lead to what Swedish doctors refer to as a “breakthrough discussion,” conversations which help sort out when someone needs to switch from fighting for time to fighting for other things they value, like being with family or taking a last trip to a beloved place, or enjoying apple pie.

In my next blog, I will discuss another theme in Gawande’s Being Mortal, where are you going to live when you need health care support? 

The timing of reading a book sometimes makes all the difference. If you are reading my blog, Atul Gawande’s Being Mortal might just be the right book at the right time for you. Gawande is an experienced surgeon who tells his professional story, a personal journey from ignorance to understanding about aging. Are you or were you a caregiver for someone you love - your husband, your wife, your mother, your father? Are you thinking about how you want to age? Are you entertaining any thoughts that you might need the care of another person as you grow older? If so, this book is a great gift to give yourself. It might help you make important health care decisions for your loved ones or yourself. It also might give you peace of mind about health care decisions you have already made for loved ones.Gawande helps the reader understand what being mortal means, through stories about his patients and research that describes the aging process.

One the themes in Being Mortal is that the process of aging and dying is normal, tragic, and inevitable. Gawande shares research that explains what happens to our bodies as we age and reach the end of life. He describes how our teeth, bones, muscles, eyes, skin, hair, hands, heart, brains and lungs decline over time. Gawande says that “the story of aging is the story of our parts.” As deficiencies in our complex bodies increase, the time comes when just one more problem is enough to weaken the whole and we become frail. If we are privledged enough to live a long life, becoming frail is a normal part of our mortality.

When we are frail, a precipitating event, like a fall, or pneumonia, may lead to death. But in our fight against old age and dying, we too often perceive an illness as a battle that must be fought resulting in a winner and a loser. Many of us don’t want to think about dying, much less talk about it or even accept that there is a 100% chance that we will all die. The very act of thinking about the possibility of our own death, and talking about it with loved ones and professionals, could help us understand our mortality, and make it a shared rather than a lonely experience.

In my next blog, I will talk about another theme in Gawande’s Being Mortal: why doctors don’t usually help us to come to terms with aging and dying, and how this could change.

I've been practicing living in the moment. Aligning myself as a human BEING as opposed to a human DOER who is tied to a calendar, lists, and other strategies for keeping up with the to do's, or check marks for done. I've gotten so accustomed to being in the moment that when asked how I am doing, I often describe my present joy. Sometimes this is sufficient and the questioner and I have a delightful conversation about our mutual happiness. But sometimes, the one asking the question will look at me with bewilderment and say something like, "Well, I can see you are happy, but what do you actually do?"  

I responded by sharing a list of some of the things I have enjoyed doing this past year in my practice: 

1. Assisting a much too young client in probating her twin brother’s estate after he died unexpectedly and without a will.
2. Representing a client in a guardianship matter who wanted to discharge his mother from a skilled nursing home so that her passing would be in a loving environment surrounded by her family.
3. Helping families understand the plethora of long term care options and how Medicare, Medicaid, Special Assistance, and Veteran Administration pension benefits might or might not help them.
4. Working with families who don’t have a wealth manager, but need someone to help them think carefully and creatively about how to achieve the desired quality of life and obtain the most appropriate and highest quality of care possible for their loved one.
5. Traveling to homes, hospitals, and hospice to meet with clients who want to make certain their legal documents are in order and accurately reflect their wishes.
6. Helping parents of young children have access to an affordable and simple estate plan for themselves and their children which typically includes a simple will with a testamentary trust, health care power of attorney, living will/advance directive, and durable power of attorney.
7. Facilitating difficult and emotional conversations. Clients find it easy to have hard conversations with me on subjects like disability, death, mortality and our humanity. Once a client came seeking advice about how to find and pay for long term care for her mother. She left my office with an acceptance that her parent was in the active process of dying.  With this new focus, hospice was able to come on board the next day and provide support for the entire family--up to and beyond the parent’s death.
8. Educating and empowering older clients to have a conversation with their doctor about a Do No Resuscitate Order and a Medical Order for Scope of Treatment.

This 500 page report released by the Institute of Medicine brings attention to some major themes about death:

Having to make decisions about a loved one's care is never easy, but having to make these decisions at the end-of-life is a life-changing experience. The majority of us do not have conversations about end-of-life with anyone—our doctors, family, friends, or attorneys. When a loved one nears the end of her life and is not physically, mentally or cognitively able to make decisions about her care, we often feel helpless and frustrated that acute hospital care is causing unnecessary discomfort and unwanted and costly care that does not reflect our loved one's values, goals and preferences. Although we do not always sign advanced directives and make other plans for our death, we all want end-of-life care to be compassionate, affordable, sustainable and the best quality possible. The need for families to provide caregiving for a loved one is increasing daily. Family members take on tasks such as providing personal care, household chores, paying bills and managing medication which are cumulative (keep increasing) and progressive (never let up).

A major recommendation of the report that hit home with me was the call for public education that normalizes conversations about death and dying. In my first year practicing elder law, I have had the privilege of talking about death and the process of dying with many clients. And while family members are most often seeking advice about end-of-life care and how to pay for it, I find myself asking, "Are you ready for your loved one to die?" It is from this sacred conversation that people are able to start developing the best, most appropriate plan of care for themselves and their loved one.

This month, I provided my Introductory 101 seminar entitled, "End of Life Transitions, An elder lawyer's perspective on proactive planning for yourself and your family," to a focus group of professionals. This educational seminar is the result of my determination that too much information and advice about long-term care is often confusing, inconsistent and has a fearful spin that leaves one feeling like they should do this, buy that, or act now or face something really horrible. I know how difficult it was for me to understand the various levels of care and whether and how people might qualify for public assistance to pay for care. This seminar is my attempt to provide a basic overview of long-term care so that with this foundation, families can dig deeper into other seminars available in the community on "asset protection, medicaid planning and financial planning to maximize funds to pay for care & retirement."

I am offering this seminar free in my office as well as in the community. If you would like for me to present to your group, organization or extended family, please contact my office to make the arrangements.

Most people understand that a Will, sometimes referred to as a Last Will and Testament, is a document that describes who you want to have your property when you die. Property that passes to another person in a will is commonly referred to as "probate assets." So for example, you might want your grandson to have your father's pocket watch, or your daughter to have your engagement ring. For many people who think about what they have to leave loved ones after they die, it is often the personal property that has the most meaning for those left in the physical world.

Understanding what property passes to your loved ones through your will and what property doesn't is the first step in deciding what you want your will to say.

I cherish owning and wearing my Aunt Scottie's ring that I saw on her finger until she died at age 96. I wear her ring on days when I want to be reminded to live as she did--full of optimism and satisfaction that she had everything of value that there was to have in this world.

There are other assets that people own at their death that do not pass at their death by a will. These are commonly referred to as "non-probate assets." Below is a list of the most common examples:

• Property that you have named someone as a beneficiary on so that they receive the property at your death. For example, individual retirement accounts (IRA's) and life insurance policies. 
• Property that you own jointly with someone that has a "right of survivorship." This means that at a joint owner's death, the property automatically goes to the "survivor." A right of survivorship can also apply to the ownership of several types of property/accounts, for example, bank accounts, investment accounts, stocks, bonds, and real property (real estate).
• Bank accounts that you have told the bank in writing that you want the funds to be paid to (name) at your death. This is often called a "pay on death" (POD) account.
• Property that is owned in a trust that you create, passes to another person according to the terms you write in the trust.

If you are thinking about creating a will or revising your will with an attorney, it is important that you discuss all of your property so that you understand HOW you want your property to be distributed to your loved ones and any charities at your death.

Wake County Family Court develops and enforces local rules that govern all domestic legal claims filed in Wake County. All attorneys and any parties that are representing themselves are required to follow these rules (2013 edition—57 pages!), or face sanctions that include, but are not limited to, a dismissal of a claim, award of attorney fees to the non-offending party, and refusal to allow evidence from the offending party as to some or all of the issues in the case. Understanding and applying these rules can be difficult for people who are not familiar with North Carolina laws and do not have some working knowledge about the court process in general. This being said, Wake Family Court has done an excellent job drafting their rules and related mandatory forms with an obvious intention of making them as simple and clear as possible for non-lawyers to understand and follow.

Having a family court in Wake County to support divorcing spouses who need assistance dividing their property is an incredible opportunity and resource that is not available in every North Carolina County. The family court staff are also wonderfully resourceful information providers, but they cannot give assistance that even comes close to providing legal advice. 

By providing a general understanding of the equitable distribution (“ED”) court process, I hope to help you understand why it might make sense to take a deep breath to get yourself emotionally centered before deciding whether the equitable distribution court process makes good financial sense in your particular situation. 

Let me use an analogy of a pie. When spouses separate, on the day they separate, they have one pie of “marital property” that needs to be divided between themselves. Sometimes, the pie is very large with lots of property and few debts. Sometimes, debts are the major ingredient in the marital pie. When you look at your marital pie and think about your fair slice, you need to ask yourself if it makes good financial sense to give a good share of your family’s marital pie away in order to pay all of the costs associated with dividing the pie. In more cases than you might imagine, spouses end up spending more money than they have in the marital pie to get it divided.

Only as an oversimplified example for illustrative purposes only, let’s consider the Wake Family Court’s process for equitable distribution lawsuits. Let’s say the Wife files a lawsuit for equitable distribution on January 1st in Wake County Family Court. This case is assigned to a judge that stays with the case throughout the process. Also, at filing the Wife gets a date for her and her husband to return to court within 120 days for the Scheduling & Discovery Conference (by end of April). Within 90 days after filing the action (end of March), the Wife needs to have completed and served on the Husband a 33 page Equitable Distribution Inventory Affidavit (Form 19) that outlines among other things, all property and debts the spouses had at the date of their martial separation. The Wife also must file the Certification of Initial Disclosures (Form 17B) and a certificate of service that she has given the Husband a completed ED Inventory Affidavit along with all supporting documents. The husband then has 30 days to get these same forms and any supporting documents to the Wife (end of April). At the Scheduling and Discovery Conference (end of April), the parties set a date and determine which professional they will pay to engage in alternative dispute resolution (ADR) such as mediation or arbitration. Generally, each spouse pays for half of the costs of ADR. ADR must be completed within 210 days from filing the action (end of July). If the parties don’t reach an agreement with ADR, they must fulfill the requirements for an initial pretrial conference (210 days/end of July), a final pretrial conference (240 days/August), and hopefully have their trial completed before the judge within 270 days/September. (Also keep in mind that these timeframes are only goals. The actual time it takes to get an equitable distribution case heard before a Wake County judge can take much longer than nine months.)

So what about the costs associated with moving an equitable distribution lawsuit through this process? I can say there is unanimous agreement that court fees and paying an attorney’s hourly rate in addition to a mediator’s hourly rate is expensive. That is why if you cannot agree on how to divide your marital pie with your spouse outside of court, you are wise to employ an experienced attorney to help you though this process in the most effective and efficient manner possible. Remember, you can always “settle” with your spouse at any time during the process described above. 
And the good news? There are lots of ways divorcing spouses can work together to reach an agreement about dividing their property/debts that preserves as much of their marital pie for themselves as possible. 

I help families in three ways. First, I represent one spouse when they want to enter into a collaborative law agreement. This means that I am employed to help settle the division of marital property without litigation. There are lots of tools and professionals collaborative lawyers use to make the settlement process as cost-effective and efficient as possible for each family situation. 

Secondly, I can be employed by two spouses to serve as a mediator. I choose to conduct mediations in my office with only the parties present and not their attorneys.

Thirdly, I provide a two-hour initial consultation that helps a spouse understand equitable distribution in the context of his/her marital/separation circumstances and together, we develop a plan of action that ranges from “do nothing” to “litigation in court.” 

I had the privilege of helping my Godmother, S celebrate her 96th birthday last weekend. As I drove to the NC mountains, I felt a bit sad that I wouldn't be able to stay in her home since she is now residing in an assisted living facility. This sad feeling gradually lifted as I enjoyed several precious moments with S that taught me a few things about community living and the tough decisions that led up to the move.

First, I took S shopping. There isn't much in life that S likes more than shopping. And since she doesn't need more than two closets filled with clothes, I asked her to help me shop for a conference room table for my office in Raleigh. S was thrilled to have a mission and eager to direct me where to go. It wasn't until we went into the second furniture outlet that I discovered S knew the owner and had worked with his brother 65 years earlier. The owner called his brother to come over and visit us. At some point in the conversation, the brothers talked about their loved one who had lived in the same assisted living facility. From this affirmative conversation, I could see that S felt comfortable and somewhat proud that she was not simply living IN a facility, but rather WAS LIVING someplace that people respected and trusted to provide care for loved ones.

Second, S and I had a very serious conversation over dinner about the events that led up to her moving into care. She doesn't remember the details or how she felt when she fell and started having mini-strokes last summer. But she does remember what others have told her because for a good while, she kept asking folks to describe what she was like. At dinner, S told me that she is glad to be living where she is as she now accepts that she isn't able to care for herself on her own. In essence, S expressed gratitude that she had not died at home because regaining her health and happiness has been a huge blessing for herself and others. Her life has now become more important than living at home.

Finally, I knew that S was fully integrated into her community when I took her home, completely exhausted and a little wobbly with her walker. I helped put the groceries away and hang up her coat. I thought she would go directly to bed as she had remarked several times that she was tired and it was "certainly a late night." When I hugged her and started out the door, she quickly turned around and grabbed her walker to follow me. When I told her that she didn't need to walk me out, she replied, "Oh, I'm not. I've got to go tell the gang about my day!"

If parents litigate child support in court, judges in North Carolina determine the child support obligation pursuant to the uniform statewide presumptive guidelines known as North Carolina Child Support Guidelines. These guidelines can be read and printed from the www.nccourts.org website under forms (AOC-A-162). While there are limited circumstances that allow judges to deviate from the guidelines, for the majority of parents in court, the guidelines are followed. In a nutshell, child support is based on the North Carolina Schedule of Basic Support Obligations that is periodically reviewed and modified in a process facilitated by the Conference of Chief District Court Judges. The Schedule sets out the combined adjusted gross income for both parents, and based upon the number of children, determines the amount of money needed each month to financially support the children. This amount is then allocated to each parent based upon their income and the number of overnights a child spends in each parent’s home. Under the guidelines, both parents are responsible for financially supporting their children. The amount of income a parent earns, the number of overnights children are in each parent’s home, and who is paying for “adjusted” expenses such as health insurance, determines whether one parent "owes" monthly child support to the other parent.

In most circumstances, parents do not have to litigate child support in court. They can agree to how child support will be paid/received in a separation agreement. Because NC Child Support Guidelines are designed to be an objective and fair method of determining child support, many parents opt to follow them in a written agreement that is between the parents. When parents enter into a valid agreement, or contract, the court will not modify the agreed upon support unless the amount of support is “unreasonable.” Therefore, it is very important for parents entering into an agreement on child support to determine a reasonable amount of child support, and to make certain that each parent understands what the financial obligations are on a day-to-day basis. Research shows that the amount of conflict between parents is the critical factor in determining how well children of divorce grow and develop into the healthy, happy, and well-adjusted adults their parents want them to become. For this reason, parents need to strive to not fight over money. One way to prevent fights over the financial support for children living in separate homes is to have a good understanding of what you are agreeing to in a separation agreement and to set forth when and how child support will be reviewed and modified in the future.

A detailed child support agreement would spell out who pays for: health insurance premiums and out-of-pocket health care costs; work-related child care costs including summer/track out from school; any extraordinary expenses for the children; extracurricular activities such as sports, club dues/expenses, band, chorus; faith/community expenses; school photographs; yearbook; graduation expenses; clothing/shoes; school supplies; school lunches; and class trips. Developing a detailed budget for yourself and your children is a good first step in determining your children's necessary expenses and developing a plan to live within the budget each month.

Facing death, whether it is your own or a loved one, is often a little bit easier for everybody when you talk to someone about it before it happens. 

In therapeutic terms, this is the concept that when you have an opportunity to anticipate the grief related to dying (anticipatory grief) you are often more emotionally prepared when death occurs. The last six months of my mother-in-law's life was filled with anticipatory grief as her family watched her sharp decline in mental and physical capacity. Marie's quality of life fell so far and so fast that it was very difficult to watch her enter into a condition that North Carolina's Advance Directive for a Natural Death (Living Will) describes as "I suffer from advanced dementia or other condition which results in the substantial loss of my cognitive ability and my health care providers determine that, to a high degree of medical certainty, this loss is not reversible." 

At Marie's Celebration of Life, her pastor captured Marie's core personality when she described Marie as a woman who loved life, was full of spunk, and greeted everyone with a beautiful smile and a warm high-five. This describes the Marie I sat down with to talk about death. You see, many years ago, Marie asked me to draft a living will for her. When it comes to drafting legal documents about the end-of-life, you can't simply "fill in the blanks and notarize the signature," you have to enter into a deeply personal, scared, and privileged conversation about death. 

On October 10, 2013, I had the opportunity to discuss the terms of Marie's Living Will with Tom, her beloved husband of 58 years. Marie's decisions about her death were a critical component in our conversation about inviting Hospice to help care for Marie. Tom wasn't ready to let go of Marie, or give up hope that she would remain in his life for a long time. As we discussed the realities of her condition and the many benefits of Hospice, Marie, through me, was able to help Tom prepare for her death because of the decisions she made in her living will and my recollection of the confidence in which she expressed her convictions about dying. ​Marie passed out of this life early the following morning. ​

As an attorney, I often tell clients that signing a Living Will is not only for their benefit - it is a gift to family members who feel conflicted about making end-of-life decisions. As a therapist, I realize the importance of this critical conversation and strive to help clients craft end-of-life documents that accurately reflect their decisions about how they want to pass out of this life into their next adventure.

As of October 1, 2013, Session Law 2013-237 (House bill 209) goes into effect. This act amends the law in North Carolina (N.C.G.S. 50-3) to provide that a domestic violence protective order entered without findings of fact is valid if the order is entered upon the consent of the parties and the parties agree in writing that no findings of fact are required.

Page 4 of the revised court form, AOC-CV-306, contains the following provision “FOR CONSENT JUDGMENTS ONLY: Each of us enters into this Consent Order knowingly, freely, and voluntarily. The defendant understands that in consenting to this Order all of the consequences set out in the Notice to Parties and Warnings to Respondent/Defendant in this Order apply.” The parties must sign this new provision indicating their agreement that “Each of us agrees that no findings of fact and conclusions of law will be included in this consent protective order.”