Atul Gawande and Estate Planning

My friend and colleague, Fred Rolf, recently sent several of the lawyers in our firm a copy of Atul Gawande’s book: Being Mortal. Although Dr. Gawande writes about the medical community, the book was stunningly relevant to me as an estate planning attorney. If you work in the aging industry and you haven’t read the book, I highly encourage you to do so.

Some years ago, I was invited to speak to the Heckerling Institute about what I called a “King Lear Trust” – a Trust Agreement that directed that assets be used primarily for quality of care, and that asset protection concerns of the next generation not be weighed into decisions about care choices. It was, I now realize, a rough first step at incorporating concepts that Dr. Gawande articulates, into an estate plan. Dr. Gawande’s book has given me renewed insight and enthusiasm about these kinds of trust provisions, and renewed impetus to expand on what I started, call it King Lear 2.0.

So now I’m working on two new provisions to be offered to estate planning clients. They will be called: “My Care” and “My Death”. Both sections will address the extent to which the client wants to be cared for in an institution. “My Care” will be about receiving institutional care during periods of impairment. If the client wants to dissipate their resources on care in the community, they will have a place to make that expression. Likewise, in “My Death,” the client will have the ability to express their preference to die at home, notwithstanding medical advice or financial costs.

These expressions will, of course, need to be coordinated with language and nominations in other documents; including, most critically, the client’s patient advocate designation. But having the language in their Trust will give it teeth, committing the client’s assets to these expenses, and clarifying that their resources should be used first to achieve their quality of care (and quality of death) directives. The Trust can also include provisions that financially reward those family members who facilitate these objectives, and penalize those who interfere with them.

So thanks to Fred and thanks to Dr. Gawande!