Two Quickies

  1. The End of MCR 5.801(B)

The worst Court Rule ever, which requires some probate matters to be appealed to Circuit Court and some to the Court of Appeals, is about to be fixed. The Michigan House and Senate have passed legislation which would send all final orders of the probate court to the Court of Appeals.   The Governor is expected to sign.

Forever we have had a bizarrely complicated rule which required you to try and figure out what type of order you had, in order to figure out where you could appeal to. Worst of all, final orders appointing a conservator were appealed to the Court of Appeals, whereas final orders regarding the appointment of a guardian were appealed to the Circuit Court.  I, and I am sure many others, have had cases in which both guardianship and conservatorship actions were commenced, after which one action would be appealed to the Court of Appeals and one to the Circuit Court.  It made no sense.

2. California’s Assisted Suicide Law Takes Effect

Today is the day California’s citizens begin to have the right to legal assisted suicide. Until California joined the movement, only Oregon, Vermont and Washington had assisted suicide laws.  Montana allows assisted suicide based on case law.

California is obviously the big dog in this pack. One might speculate that the addition of California changes the dynamics, and may signal the beginning of a trend. How soon before public opinion shifts and we see these laws come to the Midwest? For the record, it has been 26 years since Michigan’s own Dr. Jack Kevorkian made this issue a mainstream topic.

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MFDA Chimes in on Funeral Rep Law

The Michigan Funeral Directors Association contacted the author of this blogsite and offered a different perspective with respect to, in fact, takes exception to, the conclusions offered in my prior post regarding the anticipated funeral representative law, and specifically with the proposition that the funeral representative will have a legal obligation to follow the known wishes of the decedent. Following is a legal opinion obtained by the MFDA on this issue:

Including “funeral representative” in the definition of “fiduciary” does not support the conclusion that a funeral representative would owe a fiduciary duty to the deceased person.  In other sections of the statute, EPIC expressly provides duties that a fiduciary owes, and to whom a fiduciary owes those duties.  EPIC does not impose a fiduciary duty to a deceased person.  Specifically, MCL 700.1212 provides that “[a] fiduciary stands in a position of confidence and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary” (emphasis added).  EPIC further provides that “[a] fiduciary shall invest and manage fiduciary assets solely in the interest of the beneficiaries.”  MCL 700.1506 (emphasis added).  Finally, EPIC enumerates remedies available in the event of a breach of fiduciary duties.  However, those remedies again only contemplate “[a] violation by a fiduciary of a duty the fiduciary owes to an heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary…” MCL 700.1308.

Nothing in EPIC discusses or otherwise imposes a fiduciary duty to a deceased individual.  This proposition is further buoyed by Senate Bill 551’s language that “a funeral representative… is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.”  MCL 700.3206(1).

Further, Senate Bill 551 specifically enumerates the order of who has priority in determining funeral arrangements and the disposition of the body.  A funeral representative has priority over all others (except service members whose remains are disposed of in accordance with federal statute).  MCL 700. 3206(3).  Importantly, MCL 700.3206(3) does not provide that a  funeral representative is beholden to any stated requests made by the deceased.

Finally, in outlining the powers of a personal representative, which is also defined as a fiduciary, EPIC makes following the written instructions of the decedent merely permissive, not required.  “Subject to sections 3206 to 3208, before or after appointment, a person named as personal representative in a will may carry out the decedent’s written instructions relating to the decedent’s body, funeral  and burial arrangements.”  MCL 700.3701 (emphasis added).  Clearly, if being included as a fiduciary under EPIC required following such instructions, this language would be both unnecessary and conflicting with that duty.

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Long Sought Funeral Fix Awaits Signing

Funeral photo

It appears that the people of Michigan will soon be able to appoint a “funeral representative.” A funeral representative is a person who is authorized to make funeral and other arrangements regarding the disposition of the remains of the appointing person after that appointing person is dead.  The appointment can be made in a will, a patient advocate designation, or a separate document.

Seems simple, and it is, but getting to this point hasn’t been easy. The Probate Section of the State Bar has worked on this issue for years in fits and starts, but with only nominal successes. This new process was endorsed by the funeral industry – and they got the job done. Good for all of them and all the other groups that have joined in the efforts to make this happen. (Special shout out to our friends at the Michigan NASW chapter; and to Senator Tonya Schuitmaker, the bill’s sponsor).

Currently, Michigan law gives a decedent’s “next of kin” the authority to control the funeral process, and the law provides little direction regarding how to deal with situations where “next of kin” can’t agree, or where the known wishes of the decedent are contrary to those of the deciding family member. Under the new law, we get to choose who we want to be in charge.  Further, and perhaps most importantly, as the law currently exists, the “next of kin” in charge has no legal obligation to follow the wishes of the deceased person regarding their funeral arrangements.  Whereas the new law, by statutorily defining a funeral representative as a “fiduciary,” obligates the funeral representative to follow the known wishes of the decedent.  All good. NOTE: This assertion that the funeral representative’s fiduciary status would obligate them to direct disposition in manner consistent with the known wishes of the deceased is disputed by some, including the Michigan Funeral Directors Association. The opinion of the MFDA is detailed in the subsequent post on this blog site: “MFDA Chimes in on Funeral Rep Law.”

The new law has been passed by both the State House and Senate, and awaits the Governor’s signature, which he is expected to do.

To read the bill in the form it passed both houses, click here.

To read a summary of the key provisions of the law from the House Fiscal Agency, click here.

 

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The End of Life Tar Pit

I had the most amazing client interview the other day.  A retired attorney in a lockdown unit at an assisted living facility, placed there by his family and against his will.  Perfectly lucid, but deemed to be “unable to make informed decisions” by his doctors – not because he couldn’t understand and articulate his desires, but because the desires he expressed were unacceptable to the listeners: suicide. 

He could explain why he wanted to take his life, and it made sense:  his age, physical limitations, and bleak prospects for quality of life in the future.  I was particularly moved by one of his reasons: having been predeceased by his wife and other family members, he spoke of the possibility – as he said, the “outside chance”  – that he may be reunited with them at death. 

As an estate planner, it is hard not to get trapped in a fascination with the issue of end of life planning.   It is a new concept in the law, and clearly evolving.  Currently only a few states allow assisted suicide. Others states stumble through, as Michigan does, with surrogate decision making laws and guardianships.

Perhaps it is out of our own individual concerns about mortality, and having worked with the aged and infirm long enough to be particularly sensitive to the unpleasantries that often accompany the final phase of life, that estate planners can get so lost in the mire of this area of the law.

At times I think of the role of lawyers in society in terms of a metaphor.  There is a house that humanity resides in.  The dwellers allow only the scientists to go outside and look around, but demand that they come back in and explain that they see the hand of God in nature.  They allow only the lawyers to go into the basement, to inspect and maintain the foundation and utilities.  They demand that the lawyers are able to explain what they see in terms of justice and truth.  The people in the house don’t want to believe that the placement of rocks on which the house was built are the product of randomness – and so the lawyers do their part in keeping the house standing without offending those who dwell there. 

In looking at the way the law handles end of life, I feel this calling most acutely.  Society is faced with an unprecedented issue – we are living longer, but for many, the final years are without quality.  We have a hard time thinking about and talking about quality versus quantity in the context of human life.  So the lawyers struggle with how to explain the rules for ending life, when those rules must supposedly stand on the rocks of justice and truth.

Yes – I am trapped.  But please, don’t pull me out just yet. 

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Time To Make Your Death Wish?

Current law provides that we have a constitutional right not to be kept alive if we don’t want to be.  That is, if we are being kept alive artificially, we can have the plug pulled, the feeding tube removed, or our pacemaker turned off, as they case may be.  And, if we are unable to make that decision for ourselves, an agent we appointed while we were competent can make that decision for us.  This is the basis for those legal documents we create now: patient advocate designations (aka durable medical power of attorney) and in some states: a living will.

But that is a different issue: if I am alive and my body is going to keep going, but I don’t want to live anymore, can I have a doctor assist me to die?

Here’s what I see:  The number of people who I talk to who think the time for legalizing assisted suicide has gone is up – way up.  Already legalized in three states (Washington, Oregon and Montana), the genie is out of the bottle – and like legalized marijuana and gay marriages, I figure it’s just a matter of time before it becomes accepted everywhere.

So, for people planning now, and anticipating this coming change, my question is: Should you include a written expression about the circumstances under which you would want your life terminated – a “death wish” as it were?

Put another way, what indignities would you be willing to suffer before you would want to die?  Some common triggers might be:

•  When I don’t know who my children are.

•  When I don’t know who I am.

•  When someone else has to clean me (ie, wipe my butt).

•  When I have to be fed by someone else (because of cognitive impairments, not physical).

•  When I have no meaningful human connections (ie, when no one cares about me or visits me).

• If I am going to die anyhow, that is, the decision has been made to pull my feeding tube, I would rather be assisted along rather than starved to death.

I think a lot of people might decide today that if they met one or more of these standards that they would rather be put to death in a dignified manner than continue to live until their body shuts down “naturally.”  Of course, for some people that is not true.  There are many people who, for instance, don’t particularly care for human connections.  So the drafting of these “death wishes” would have to be tailored to the individual.

I understand this is a sensitive issue.  It involves valuing life.  I understand it could become an avenue to financially driven decisions by insurance companies and greedy kids. But if you have worked with families, as I have, where loving people agree that the subject of our discussion has no quality of life and would never have wanted to live this way, you might appreciate that there must be a way to balance those concerns to allow a self-directed decision on this topic to be enforced in appropriate situations.

Just a thought.

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