By John O’Grady, O’Grady Law Group
Dick Magney knew that drawing up an advance health care directive was the best way to protect his desire for a natural death with minimal discomfort. He named his wife, Judith, to see that his wishes were carried out. This should have allowed him to die in peace, but when a Humboldt County Adult Protective Services (Humboldt APS) nurse questioned the Magneys’ physician-supported decision to proceed with palliative care only, Humboldt APS challenged Dick’s advance directive on an ex parte (expedited) basis without notice. The same day, the trial court temporarily forced unwanted medical treatment on Dick. Judith employed counsel and filed a petition contesting the merits and seeking dismissal, and for statutory attorney fees. Humboldt APS immediately withdrew its petition and the court vacated the treatment order, but denied Judith’s request for attorney fees.
Claiming neglect by Judith, Humboldt APS then filed a petition to take over as Dick’s conservator. More legal battles followed, and Dick even testified against Humboldt APS.
He lived, perhaps longer than he wished, to see his wife’s legal efforts partially vindicated. More than a year after his death, Judith received poetic justice in the form of a scathing appellate opinion in her favor. The appellate court concluded that Humboldt APS “knowingly and deliberately misrepresented both the law and the facts to the trial court.” While Judith surely would have preferred to spend her husband’s final days differently, her dedication to justice has paid off. She will finally recoup her attorney fees. The decision confirms the fundamental right of competent adults to control decisions concerning their own health care with an Advance Health Care Directive. Is yours up to date? Humboldt County Adult Protective Services v. Superior Court, 4 Cal. App. 5th 548 (2016).
Prevent Deathbed Regrets with Courageous Estate Planning
“Regrets, I’ve had a few; But then again, too few to mention,” Frank Sinatra famously sang in My Way. But as palliative nurse Bronnie Ware discovered while caring for terminally-ill hospice patients, people have more than a few regrets about life as they get closer to death. Ware philosophically explores these in her book The Top Five Regrets of the Dying: A Life Transformed by the Dearly Departing. People’s most common misgivings are 1) not following their dreams, 2) spending too much time working, 3) not telling loved ones how they felt, 4) losing touch with friends and 5) not letting themselves be truly happy.
We typically don’t realize what we’ve got until it’s gone: and our own death is the ultimate “gone” as far as we know. Acknowledging rather than avoiding death helps us appreciate how precious our limited time is, giving us the courage to live more fully.
Estate planning can be the practical component of this emotional and spiritual reckoning. It is the legal representation of how we want to be cared for should we be unable to care for ourselves, what we want for our loved ones after we are gone and how we want to be remembered or celebrated. In these ways, estate planning is life planning: it helps us become aware of what we really want to do with our remaining days while also taking account of material resources that could be used to realize unfulfilled dreams, such as traveling or putting grandchildren through college. We can live, and die, without regrets—by preparing for the inevitable tomorrow today.
John O’Grady leads a full service estate and trust law firm in San Francisco. He served as the 2012 Chair of BASF’s Estate Planning, Trust & Probate Section. His practice includes Estate Planning & Administration, Probate and Trust Litigation.