Monday, August 11, 2014

casey-kasem-reuters-208x300More than a month after his death at age 82, Casey Kasem’s body still has not been buried and now is missing from the Washington state funeral home where it was being held, according to a recent statement from the publicist for his daughter, Kerri Kasem.

Kasem’s body disappeared around the same time that Kerri Kasem was granted a temporary restraining order she sought to prevent Casey Kasem’s second wife (and the step mother of three of his four children, including Kerri), Jean Kasem, from cremating Casey’s remains or removing them from cold storage. Kerri was seeking a court order allowing Kerri to obtain an autopsy of her father’s body. Kerri has stated that in light of threats by Jean to sue Kerri for elder abuse and wrongful death she is concerned about how the results of any autopsy that Jean may have commissioned might be used.

According to news reports, Casey’s three older children believe Jean had his body moved to a funeral home in Canada, but do not know if his remains have been disposed of.

The drama began months before Kasem’s death as Kasem’s children from his first marriage and Jean battled in court over his medical care. Casey was battling Lewy Body Dementia.

According to news reports, in late 2013, as Kasem’s health was in decline, Kasem’s daughter Julie filed a petition seeking to become Kasem’s conservator and enforce a medical directive signed by her father in 2007 that named Julie and her husband as Kasem’s attorneys-in-fact to make health care decisions for him. Julie charged that Jean had been preventing her from obtaining information about Kasem’s condition for months.

Jean challenged Julie’s petition by producing a separate medical directive she claimed was signed by Kasem in 2011 appointing her as his health care attorney-in-fact. The court ultimately upheld the validity of the 2011 document produced by Jean and denied Julie’s petition for a conservatorship. This meant Jean would continue to have control over Kasem’s medical care.

Then, in May 2014, a California judge awarded Kerri temporary power of attorney after Jean moved Kasem from a California nursing home against his doctor’s advice and took him to a friend’s home in Washington state. A Washington judge later authorized Kerri to visit her father and to arrange to have him seen by a doctor. Kerri then had Kasem admitted to a Washington hospital.

The saga continued when Jean went back to court seeking an order requiring Kasem’s doctors to provide hydration, nutrition and medicine infusions to him after Kerri apparently had directed doctors to remove such supplemental infusions. Kerri’s position apparently rested on Kasem’s 2007 medical directive, which, according to news sources, included a declaration that he did not want to be kept alive by artificial means, including artificial nutrition and hydration, if it “would result in a mere biological existence, devoid of cognitive function, with no reasonable hope of normal functioning.”

Ultimately, the judge reconsidered his decision and restored Kerri’s authority to have doctors remove the infusions of hydration, nutrition and medicine. Kasem died on June 15.

What could have been done to prevent this drawn-out feud featuring contempt of all sorts from both sides (including Jean allegedly throwing raw meat at Kerri) from happening?

The first step, of course, is to think about end-of-life care issues in advance while you still are healthy and to have a plan in place in the form of a medical directive. A medical directive (also called a health care power of attorney) typically expresses a person’s wishes for end-of-life care in case they are incapacitated and unable to express those wishes and also appoints an “attorney-in-fact” to make medical decisions for them during their incapacity.

The scope of the decision-making power of your attorneys-in-fact can be as broad or limited as you desire, and if circumstances change in the future, it is a good idea to include a provision for removal and replacement of attorneys-in-fact.

It appears that Kasem did at least part of this first step right—he had a medical directive, and perhaps other estate planning documents as well.

As Kasem’s situation illustrates, however, merely having a medical directive does not mean that the entire family is going to support its enforcement. It is important to recognize that second marriage or mixed family situations, while extremely common, are also a common source of conflict, particularly where family members may have competing interests.

One way to avoid the conflict that arose in the Kasem case, is to ensure that any medical directive you execute clearly states that it supersedes any prior medical directive. It also is a good practice to collect any superseded medical directives (or financial powers of attorney) from the individuals to whom you may have distributed them and destroy all copies.

Additionally, it is always a good idea to have a thoughtful, in-depth conversation with those you appoint as attorneys-in-fact as well as other close family members and/or friends to discuss your preferences for end-of-life care. If you anticipate that there could be conflict among family members, it may even be a good idea to put those detailed wishes in a signed writing or on video, so there can be no dispute as to the wishes you have expressed.

The current drama over the burial and autopsy of Kasem’s body underscores that, if you have preferences regarding the disposition of your body at death or if you anticipate conflict, you should put those wishes in your medical directive or in separate burial instructions. (Kasem’s last “Long-Distance Dedication”?)

If the burial, autopsy or organ donation powers are granted to an attorney-in-fact in your medical directive, it also is important that the medical directive does not become ineffective at your death as to those powers.

In addition, other estate planning must-haves such as a financial power of attorney and a revocable trust can grant those you appoint as fiduciaries the authority to act on your behalf if you become incapacitated, and empower those individuals with the financial means to do so without the need for court intervention.

If the state where you live permits, your trust and will even could include a provision called a “no contest clause” which states that if any beneficiary challenges your will, trust, or other estate planning documents, she would lose her beneficial interest in your estate.

Although no degree of planning comes with a guarantee against all litigation, some advance consideration of issues that could arise and planning accordingly may help prevent the type of battle that has unfortunately affected Casey Kasem’s family.

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