First, what do I do? I specialize in trusts and estates, which means we do estate planning (drafting wills, trusts, end of life documents, etc), and administration (trust administration, probate, after-death planning). This means I’m really good at my area of laws (trusts, estates, and to some extent, taxes) and know very little about the others.

Also, I shouldn’t have to do this, but I’m a lawyer, and we’re all about covering our asses:

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Let’s talk about deathbeds. There’s a lot of drama that can come from exciting scenes at the bedside of a dying character. And then there’s reality.

First, pulling the plug. For someone to be able to take you off life support, they have to have the power to do that. And it better be pretty damn clear, or else the hospital is going to ignore you and cover their asses from getting sued. In other words, hospitals are SUPER shy of litigation and would prefer that lawyers just leave them alone, thank you very much. So, in California, we have documents called the Advance Health Care Directive (known as a living will in other states). They allow you to appoint someone as your agent to make health care decisions for you, if you are unable to do so. A lot like a power of attorney, but for medical stuff instead of financial stuff.

An AHCD appoints a person as an agent, allows the principal (that’s the person filling out the forms) to make decisions ahead of time about such things as pain management, life support, and organ donation. If you have one of these, your agent should do what it says. And a hospital is going to scrutinize these suckers closely. So not just anyone can wander in off the street, claim to be your next of kin and pull the plug.

And the wording on the form is pretty clear. The life support options only come into play “if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits.”

So if you take an extra long nap, they aren’t going to just kick you to life’s curb. They are going to be pretty damn sure there’s no hope for you before anyone even begins to discuss pulling the plug.

And let’s discuss deathbed gifts. Lots of people give away things as they think they’re dying. There’s actually a lot of discussion of this, largely to do with tax law. The IRS REALLY doesn’t like it when you give away things right before you die, and then avoid paying estate tax. So, if you have a really wealthy character, know his estate is going to get busted on estate taxes for any of those million dollar gifts he feels the need to give away right before he croaks.

Of more importance is the concept of incompetence. Is your character really competent to be making decisions like who gets granny’s vase, when she’s just about to kick the bucket? There’s a whole lot of law relating to incompetence… did you know that there’s different levels of competence required for different things? For instance, there’s a whole different standard regarding the competence level you need to get married versus the competence level to draft a will.

And speaking of competence, we’ve all heard stories of people being bonkers crazy and then having lucid moments. Guess what? Those lucid moments can count as competence for various things. So prepare to have your lawyers argue about whether or not the person was lucid when that will was drafted…whee!

Sorry folks, deathbed confessions are another area of law – often criminal or evidence – and while I learned some of that in law school, I know just enough to be dangerous… i.e. I’ll be taking those laws and bending them to my will in my fiction writing 🙂