Estate planning more common in W.Va.
More West Virginians either have a living will or a medical power of attorney, according to a survey by an end-of-life care center, but lawyers tell people to use caution and avoid easy mistakes when issuing their final wishes.
Dr. Alvin Moss, director of the West Virginia Center for End-of-Life Care, said the center's survey found a higher percentage of West Virginians have filled out these forms of advance directives than in other states.
The survey, which reached out to 1,000 West Virginia adults, found 50 percent either had a living will or a medical power of attorney. Thirty-eight percent had both. The survey also found that more people are dying at home as opposed to a hospital.
This marks an increase from three years ago, when the center found 40 percent of people had at least one document and 28 percent had both.
John Hussell, an estate-planning lawyer in Dinsmore's Charleston office, said he also sees more people using medical powers of attorney and living wills than in previous years.
Hussell said attorneys encourage people to get these documents at the same time because it is less likely to present a problem later.
The state Legislature has provided funding the West Virginia Center for End-of-Life Care since 2002, the center's news release states, and it receives a majority of its funding through the state Department of Health and Human Resources.
Moss explained one of the center's missions is to educate residents about advance directives and give them the opportunity to complete these forms. To educate the public, staff members have given presentations at various health care facilities.
"You want to ensure that when a person can no longer make a decision, they have named a person they trust to make decisions for them," Moss said. "It's really helpful for doctors, nursing homes or wherever the person is to make sure the person is the one they chose to be the decision maker."
Moss said many people delay getting these documents because they think they don't need it now.
Hussell said it's important to get documents sooner than later because the procedure of appointing a guardian could be time-consuming and costly if the person is incapacitated later in life.
Through this process, the person may not have assets go to the one originally intended, Hussell said.
A case recently before the state Supreme Court explored what can happen if a person is too incapacitated to sign a will.
In the per curiam opinion, justices said that failure to sign a holographic will render it void.
In this case, Mason County resident Bright McCausland executed his last will, selecting Robert Fluharty as executor of his estate. He also wanted his property to go his friends, neighbors and the West Virginia State Museum.
However, six months later, when he was physically incapacitated and living in a nursing care facility, the petitioners said McCausland dictated a new will to his nephew, Douglas Brown. Brown typed the document but McCausland didn't sign it.
Later on, Brown along with Marion Robinson, the Mason County Farm Museum, Mason County Board of Education, Henderson Church of Christ, Bob Rimmey, Heather Hutchinson and Kayla Nave filed a civil action to revoke the original will and replace it with the second dictated will.
The court decided that since McCausland didn't sign his name on the document, it wasn't a valid will.
Hussell said to have electronic signatures valid in West Virginia, there would have to be a legislative change, noting the Uniform Electronic Transactions Act does not extend to wills and trusts. He said estate planning is an area of law that is "resistant to technological change."
People also should be cautious when downloading living will or medical power of attorney documents online. Hussell said the legal wording can be difficult to understand.
"It's good and bad," Hussell said of the easy access to documents. "It's good in the sense that it does allow for people to have these advance directives that express what they wish to happen but it also is fraught with some peril. It makes it easy to manipulate someone."
"If you have an unscrupulous son, daughter or caregiver, they can take that form to someone of diminished capacity, sign that document and not understand what they're signing," he said, noting that not understanding the document also could lead to lengthy litigation after the person dies.
The state has made it easier for physicians to have access to these advance directives in a secure online database, called the West Virginia e-Directive Registry. According to a news release from the center, this registry has received more than 20,000 advance directive and medical order forms and more health care providers are signing up to be part of the West Virginia Health Information Network.
"It's extremely helpful to close the loop," Moss said. "They're not just putting it away in a safety deposit box. They are putting it in a statewide system so it's available when they need it."
Other documents that may be helpful to supplement advance directives are the do-not-resuscitate card and Physicians Orders for Scope of Treatment form, which includes more information for people facing life-threatening conditions, the news release states. Moss said only West Virginia and Oregon have been recognized with the designation of having "mature" scope of treatment programs.