New Note 18.  New studies show that many people who are completely unable to communicate and who are outwardly unresponsive are actually mentally alert and aware. There are approximately 100,000 to 300,000 individuals in the United States who are bedridden, unable to communicate, unable to feed themselves, etc. Caretakers often think these individuals are "out of it." In reality, studies of brain activity reveal that when many of them listen to stories from loved ones, their brain activity is similar to that of a totally health and alert person.

So, you should instruct your health care agent to be sure to "entertain you." Perhaps you should leave a list of your favorite TV shows, movies, music, books, etc. so that you will have some entertainment rather than being completely trapped in your own mind in relatively total isolation.

A relatively new estate planning technique is the Physician Order for Life Sustaining Treatments (POLST).  As described in Julie Appleby, Debate surrounds end-of-life expenses--Should treatment be provided, regardless of cost or quality of life?, USA Today, Oct. 19, 2006, at 1B, 2B:

On the forms, patients can say whether they want cardiopulmonary resuscitation, antibiotics or feeding tubes. Conversely, they can specify that they want full treatment, including breathing machines and feeding tubes. And for how long.

The forms differ from so-called advance directives, which are also called living wills, which name someone to speak on behalf of a patient and state patient wishes. Instead, the forms are doctor's orders, similar to directions written into medical charts, that are recognized and followed by medical personnel from technicians on ambulances to staff at hospitals and nursing homes. * * *

The POLST forms in Oregon, which are printed on bright pink paper and can be transmitted electronically by hospitals and other medical providers, are "for the individual who is in life's last chapter," she says.

Oregon was the first state to authorize POLST documents.  According to Julie Appleby, Few states allow forms spelling out patients' wishes, USA Today, Oct. 19, 2006, at 2B,

Washington state and West Virginia, along with parts of New York and Wisconsin, have similar programs. Advocates in a handful of other states, including Hawaii, Utah, Florida and Nevada, are developing them.

On December 6, 2005, the United States Court of Appeals for the District of Columbia Circuit affirmed.  American Bar Association v. Federal Trade Commission, No. 04-5257.  The court explained:

The Federal Trade Commission (“FTC” or “the Commission”) appeals from an order of the District Court granting summary judgment in consolidated cases brought by the appellees American Bar Association and the New York State Bar Association (collectively, “ABA” or “the Bar Associations”). The Bar Associations sought a declaratory judgment that the FTC’s decision that attorneys engaged in the practice of law are covered by the Gramm-Leach-Bliley Act (“GLBA” or “the Act”) exceeded the statutory authority of the Commission and was therefore invalid as a matter of law. Because we agree with the District Court that the Commission’s attempt to regulate the practice of law under the Act fell outside its statutory authority, we affirm the judgment under review.

New note 5.  The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 05-434 which address conflicts which may arise when an attorney represents several members of the same family in estate planning matters.

The Opinion validates the common practice of one lawyer representing several members of the same family. The basis of this authorization is that the interests of the parties may not be directly adverse and that more than conflicting economic interests are needed before the attorney may not represent both.

The Opinion recognizes, however, that current conflict of interest may result even without direct adversity if there is a significant risk that representation of one client will materially limit the representation of another.

Despite the “permission” granted by this Opinion, I continue to think the representation of more than one family member in estate planning matters is problematic. A potential conflict may turn into a real conflict at a later time leaving the attorney in an untenable position. It is simply not worth the risk. I believe it is better for a lawyer to owe 100% of his or her duties to one and only one family member. There will then never be doubt whom the attorney represents or what actions the attorney should take if something “gets sticky,” True, practitioners may lose some business and some clients may have higher legal fees but I believe this is preferable to the alternative.

If a password list is part of your estate planning, a number of issues will be alleviated. Create an inventory of URLs, Web content, e-mail passwords and any other property an heir [or beneficiary] will need access to.