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.”

I remember the surprise I felt several years ago when I met someone my age who was grieving the death of a close family member for the first time. I was born into a large extended family—ten children on the paternal side and six children on the maternal side. Because my parents enjoyed their young adult years, they did not get around to starting a family until Mom was in her late 30’s and Dad was in his late 40’s.

A large family + being born to older parents = lots of deaths to mourn.

Dying and all of the cultural traditions that go along with it has been a big part of my life for as long as I can remember. However, I didn’t realize that my personal and emotional response toward dying is a bit different from others until I started working as a social worker for the Hospice of Central Kentucky. I was hired to coordinate the agency’s standard bereavement policies. I spent a good deal of time setting up a computerized system that tracked the appropriate time to send letters to families after their family member died. I enjoyed this work very much. But it did not take long until I started getting called by the hospice nurses to come be with the family when death was imminent. I remember asking a nurse once why I was always getting this call when there were others available to give this type of support. She responded, “We call you because you are so good with death.”

While “enjoy” isn’t the right word to describe how I feel when I am around people dying, it is fair to say that I am comfortable and helpful in these situations (as well as in conversations about death). I think this is because of my deep sense of privilege in joining others in such an intimate and profound transition.

As an Elder Law Attorney, I can assist with legal issues that include all aspects of planning for aging, illness and incapacity such as:  

• Health and personal care planning, which include the following topics: powers of attorney and living wills; lifetime planning; family issues;
• Fiduciary (financial) representation; financial planning; housing opportunities and financing; income, estate, and gift tax matters;
• Planning for a well spouse when the other spouse requires long term care; asset protection; public benefits such as Medicaid and insurance; Veterans’ benefits;
• Capacity; guardianship and guardianship avoidance;
• Resident rights in long term care facilities; nursing home claims;
• Employment and retirement matters; age or disability discrimination and grandparents’ rights.
• Will and trust planning; planning for minor or adult special needs children; probate.

The most popular mediation model in Wake County is mediation with at least five people: husband and wife, their attorneys, and the mediator. Because this type of mediation is typically held over the course of one day and lasts until all of the legal issues are resolved, I like to call this type of mediation a mediated settlement conference. This model has many advantages and works well for families who have fully explored all legal options with their attorneys, but are unable to reach a full settlement with attorney negotiation. The goal of a mediated settlement conference is to reach agreements on all legal disputes. Typically, at the end of the mediation, the parties sign off on all terms of the agreement so there is finality to the resolution of legal disputes. Paying for a mediated settlement conference can be expensive, but it is most often effective.

There is another mediation model that has different costs and benefits, but is especially effective for family legal disputes. This model is the one used by The North Carolina Custody Mediation Program where the parties attend the mediation session with the mediator, but their attorneys are not present in the mediation.

Because of my skills as a clinical social worker and my experience as an attorney and court manager, I prefer working with clients in this type of mediation. I have seen the benefit of parties learning new skills, information, and strategies in mediation that has helped them far beyond the resolution of their immediate legal disputes. This model is much less expensive per hour which allows clients to use these financial resources to invest in multiple mediation sessions. When clients work together over multiple mediation sessions to discuss family conflicts and legal disputes, they are often able to achieve a new foundation, or baseline, for their relationship that enables them to better co-parent their children and adjust to the financial realities of establishing separate homes.

Like mediated settlement conferences, clients in this mediation model still focus their efforts on resolving their legal issues. However, it has been my experience that with family legal disputes, there are often other issues fueling the conflict that are not "legal" in nature and might be irrelevant in a court of law. In mediated settlement conferences, the mediator often gives each party ample time to talk about, or vent, non-legal issues. But this venting process is often done while the parties are in separate rooms from each other. When parties are together in a mediated settlement conference, often their attorneys try to get them to focus on only the issues that would be relevant to resolving the legal issue in court. In mediation without attorneys present, clients are often able to fully discuss important issues for them which can contribute to better outcomes for their future relationship. For example, a spouse might be having trouble agreeing to how certain marital property will be divided because of the other spouse's marital misconduct such as infidelity. If the parties were in a trial before a judge on the legal issue of equitable distribution, by law, non-financial marital misconduct is not a factor that the judge can consider in dividing the marital property.

Some might think that a disadvantage of this approach is that the agreements reached are not final. However, not reaching major decisions about your finances, property, and children on one day can actually be an advantage in many situations. Clients have an opportunity to take time to talk independently with their attorney as well as think about, and live with, interim agreements. This time can focus the clients to build on small successes. The accumulation of small successes can lead to full settlement and often prevent families from going down the high-conflict, adversarial path in court. When family members are at different points in their readiness to resolve legal issues, taking extra time to contemplate settlement can often be more productive than calling it quits and just letting time pass waiting for a trial before a judge. Getting a trial by a Wake Family Court judge takes time. Court dockets are overcrowded and the wait times are very long. And while this wait time often allows the majority of parties to settle their issues before the actual hearing, there is a big difference for the parties in the passage of time spent working together to resolve the issues or waiting for one's day in court. Setting an intention to work for settlement over litigation can be a much more powerful and healthy motivation for clients than spending one's time contemplating how the other will be defeated in court.

This being said, it is important to note that if your family legal issues are already in court, then you might be forced into trial (or you can force the other person into trial) because of the family court timelines. When parties and their attorneys decide to file lawsuits, they must comply with court management efforts to move cases as efficiently and effectively as possible. Therefore, clients who are not ready to resolve issues on their own, can be forced into trial where the judge will decide the issue for the family. If you think mediation would be beneficial for you and you already have a lawsuit filed, you need to enter mediation as soon as possible to use the wait time for trial in a productive manner.

Another hesitation some people have about this type of mediation is that they believe it is blurring a line with therapy. Most often, a mediator who engages in this type of mediation has at least a master's degree in a helping profession such as social work or counseling. While the mediator has this background, that does not make the mediation therapy in the traditional sense. However, it does allow the mediator to use the best of her therapeutic skills to coach the parties through their conflict.

As a clinical social worker, family law attorney, and court administrator, I bring all of my skills, knowledge, and experiences into each mediation session. I highly recommend this type of mediation for parties (1) when they are considering separating or have recently separated, and (2) when they have become so embroiled in their legal conflict that they are at the end of their rope and well beyond their allowable budget in attorney fees.

I like to explain to clients that my practice is based on investing in them, not their outcomes. While it is against a lawyer's professional code of ethics to promise a certain outcome in court, in family legal disputes, outcomes are not nearly as important as the process of getting there. Also, the time before making the decision to either stay in the relationship or leave, is extremely important as it can influence whether a person's journey through divorce and beyond is toward the amicable end of the scale, or at the ugly/nasty end. I have found that clients who work with me while they are just starting to think seriously about separation have the best opportunity to control their journey and to keep their legal disputes out of the court. Or as I like to say, in North Carolina, except for getting an absolute divorce, it is up to you as to whether to invite the state into your family business. I once worked with a client for two years before she was ready to move out of the marital home. When she did, the cards were stacked toward a fair settlement even though she was forced to file multiple issues in court. Once her preparation and plan were made clear to her spouse, all issues settled in short order.

Transitions in life are almost always hard, even if the transition is for our highest good. One of the main reasons I chose to leave private practice in 2000 was because I was pregnant with my second child and had a two year old in full-time care. At this time in my life, I did not want to be surrounded by so much anger and unhappiness. Oh, don't get me wrong. I loved working with my clients and more often than not, enjoyed negotiating with the other party. What I didn't like was the litigation process and how destructive it was to everyone's life, and especially to children.

My current transition allows me to move from a macro level of family advocacy back to an micro focus on individual families. I consider it a privilege, walking on sacred ground, to work with clients who are often at the lowest point in their life. It is my responsibility to use all of the tools in my bag to support clients through this transition. I rarely see an obstacle that cannot be overcome, even when it seems self-evident to others. I help clients organize their issues so that they can make clear distinctions between the resolution of their personal business—the emotional, mental, and spiritual aspects of choices—and their family business—dividing the property, creating individual budgets to establish financial independence, and mapping out the logistics necessary to parent children in separate homes. I believe we are spiritual beings having a human experience. Whether true or not, this world view enables me to see the possibilities that each of us have to create different experiences that serve our highest good. Our choices are vital to our well-being. And while it might not seem like it, when you or your spouse choose to take your family dispute into the legal arena, you do have choices at every juncture. With compassion, I can assist you in making the best personal and family business decisions, even when there seem to be no good choices available.

Please know that I am strongly biased against adversarial litigation for family disputes. If there is absolutely no alternative but litigation, I might refer you to a good trial attorney. I am a good trial attorney. I have the skills and experience, but I don't enjoy trying family disputes. Because I have limited time and resources, I choose to put my efforts into crafting settlements rather than preparing for trial. This does not mean that preparing for trial isn't important for settlement or that attorneys who litigate domestic disputes do not settle them. In fact, the opposite is true. The majority of family legal disputes that are prepared for court settle before court. Often, settlement occurs on the day of trial which is referred to as settlement "on the courthouse steps." Family law attorneys work very hard to help clients resolve their legal disputes outside the courtroom. Because I can be choosy, I prefer to work with families who have the same bias as me that adversarial litigation creates undue emotional, financial, and physical hardships for families that are not easily remedied.

So, should you stay or should you go? I will invest in this process with you until you get to the place where you know inside of yourself what is right for you. No one can make this decision for you, but I can help you get there.