Estate lawyers fear being cut out of will

Aug 8, 2005 @ 12:01 am

By Rick Miller

CHICAGO - In the wake of the Terry Schiavo right-to-die case, Congress has been considering ways to promote living wills to the general public.

But some estate planning lawyers are concerned that proposed legislation would sideline them in the end-of-life planning process.

The Advance Directives Improvement and Education Act of 2005, introduced in the Senate in February and followed by a House version in May, calls for enlisting health-care providers in "disseminating information" and "assisting in the preparation of advance directives," also called living wills. The bills make no mention of the role of lawyers in drafting such documents.

"What troubles me is the assumption that a doctor or a medical environment is the right place for this discussion to happen, because in my experience, it is not," said David A. Rubin, an estate planning lawyer in St. Louis.

"The way they are structuring this is, it is going to automatically steer people into that environment, because that's the way they are going to save money," he added. "They are going to find their way into that Venus' flytrap, and once they are in, they are never going to find their way out."

Mr. Rubin, using the Internet, is urging estate planners to contact politicians and state bar associations against the legislation. Among the act's most troublesome proposals, according to him and others, is that it would make an end-of-life planning consultation with a doctor reimbursable under Medicare.

This creates a financial incentive for people to go doctors instead of going to a lawyer, critics of the legislation say.

"What will happen is that the attorneys will be excluded from the process, and the fact is that it is the attorneys who are going to have to litigate these things, and enforce them and interpret them," said Jeffery J. Drach, an elder-law specialist who runs the Drach Elder Law Center in Wausau, Wis.

"I think this bill is pandering to this Terry Schiavo situation," added Steven Leventhal, an estate planning lawyer in Bend, Ore. "I think it is putting people at risk."

The lawyers are at odds with the Chicago-based American Bar Association, which already has come out in support of the act. In fact, this is the third Congress during which the ABA has supported legislation with similar language, noted Charles Sabatino, director of the ABA's Commission on Law and Aging.

"The ABA has no investment in making [the drafting of living wills] a lawyer's task. Lawyers do this regularly, and it is an important part of estate planning, but lawyers don't have a monopoly on it and shouldn't have," he said.

Since a majority of Americans do not have a living will, there needs to be "unified effort" among the medical profession, social-service providers and lawyers to get the message out, Mr. Sabatino added. "It's not the domain of any one of our professions."

The House and Senate bills, which have bipartisan support, come before Congress with the Schiavo case fresh in the public consciousness. Ms. Schiavo was in a persistent vegetative state for 15 years while her husband and parents battled in the courts over removing her from life support.

Ms. Schiavo, who died in March, focused national attention on the need for living wills, which spell out whether a person wants life-sustaining medical care should they become terminally ill or brain damaged.

In addition to the Medicare provision, the legislation calls for creating a Department of Health and Human Services public education campaign to raise awareness about advanced directives and the establishment of a clearinghouse where consumers can receive state-specific information.

Also, the act would make advanced directives portable from state to state - an aspect that even critics of the legislation support.

The intention is not to endorse one profession over another, said Christine Hanson, a spokeswoman for Sen. Bill Nelson, D-Fla., who has sponsored the Senate version of the bill. A House version was introduced by Rep. Sandy Levin, D-Mich. Both bills have been referred to committees.

"Sen. Nelson has said he thinks it is a decision that should be made with your doctor, with your lawyer, with your family, your clergy," Ms. Hanson said. "It's not a means of cutting out lawyers. The fact of the matter is, not every single American goes to a lawyer, so we are trying to find a common denominator."

Hospitals already are required to ask patients if they want information on living wills when they are admitted, she noted. Mr. Nelson has proposed in a separate bill that people be asked if they want information on living wills when they sign up for a driver's license, as well.

The information clearinghouse being proposed also would be a means for any profession or group to provide information to the public, Ms. Hanson added.

The awareness campaign and clearinghouse are among the aspects that bother Mr. Leventhal, the Oregon lawyer.

The legislation would open up the practice of offering living wills to "any business who wants to sell these documents out of a storefront by people who don't have the training."

"The person, in my opinion, to really explain these is not the doctor, is not the hospital, is not somebody selling a document - Advanced Health Care Directives Inc.- none of those parties will explain these end-of-life decisions the way a competent attorney will do it," Mr. Leventhal said.

Mr. Rubin is concerned that the bill would affect the livelihood of estate-planning lawyers. The need for a living will can prompt people to consult a lawyer and then might lead to discussions about estate planning or preparing other documents such as a will or power of attorney.

"It hurts our livelihood, because really, people should be using the Schiavo situation and these kinds of questions as a way of encouraging everybody to go see a lawyer. And instead what this is doing is, it's going to encourage people to go see a doctor," Mr. Rubin said.

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