Banking on Good Advice

Some of the most basic assets in an Estate can pass outside of the formal probate process. Survivorship rights on a typical bank account, for example, can be added with some boilerplate explanation and the check of a box. But what if you only intended to add a name to the account for convenience?

Check the box, and you’ve just made a significant estate planning decision, relying on the advice of an account manager, or worse, at your local bank. Upon your death, the other person gets the money. Is it really what you wanted? If that sense of foresight and accomplishment is fading, odds are it will soon be replaced by insecurity and doubt that you received sound advice and a decent explanation.

Obviously, the decision that the client makes (or doesn’t) carries some consequences, but let’s leave that decision for another discussion and focus on the advice they received. It certainly has some legal consequences. Litigation over multi-party bank accounts came to a head nearly twenty years ago when safe-harbor language was created to remove all doubt regarding the survivorship features of multi-party accounts. Today, financial institutions adhere to this safe-harbor approach. The language is found in our statutes and written, you guessed it, in a language that sometimes even lawyers barely understand.

In my experience, bank employees are some of the nicest, most professional people in the world, but I hardly want a headstrong young bank employee making vital legal distinctions any more than I want my mailman interpreting my x-rays. Call me cautionary, but the employee’s act of explaining the distinctions between “survivorship” and “convenience” features to their client seems dangerously close to the unlicensed practice of law.

Sharp bank employees should educate themselves, explain the distinctions thoroughly and refer the client to an attorney. Sharp clients should contact that attorney, understand the legal consequences of their decisions, make thoughtful and appropriate choices and enjoy the confidence that comes with an effective estate plan.

“No” Your Rights

I recently found myself discussing a local hospital’s approach to DNR status with a fellow Houston lawyer. He informed me that this hospital (which will go unnamed but let’s just say it’s one of the big three) does not subscribe to the Texas Health and Safety Code, and instead answers only to their in-house ethics committee and the edicts this board releases.

One such edict was the subject of our discussion and involved the fact that said hospital automatically institutes a DNR provision for any patient they feel necessitates such measures. Therefore, regardless of whether the patient wants a DNR order, or voluntarily signs a DNR, the Hospital, answering only to their ethics board, determines who gets to live and who gets to die.

Therefore, I felt it necessary to once again familiarize everyone with your rights under the Texas Advanced Directives Act of 1999.

If a treatment team has determined that a treatment your have requested is medically futile, you have the right to request an ethics consultation.

Under the law, the following process must occur if the treatment team and institution wish to take full advantage of the provisions of the law creating a legal safe harbor for them.

These provisions are as follows:

1. The family must be given written information concerning hospital policy on the ethics consultation process.

2. The family must be given 48 hours’ notice and be invited to participate in the ethics consultation process.

3. The ethics consultation process must provide a written report to the family of the findings of the ethics review process.

4. If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must try to arrange transfer to another provider physician and institution who are willing to give the treatment requested by the family and refused by the current treatment team.

5. If after 10 days, no such provider can be found, the hospital and physician may unilaterally withhold or withdraw the therapy that has been determined to be futile.

6. The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of time before treatment is withdrawn. This extension is to be granted only if the judge determines that there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time is granted.

7. If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution.

Remember, when a hospital is telling you that you have to give up, you have a right to say “NO”. With hospitals rushing to establish their own ethics committees to conveniently side step Texas code provisions, it is now more important than ever to know your rights.