004: Estate planning and End of Life Decisions: Who’ll be in Charge When You No Longer Can Be? – Ken Kossoff

Marty Stevens-Heebner: (00:02)
Moving your mom or your dad or yourself isn't just about moving things from one place to another. It is much more complicated than that, as are so many things having to do with later life.

Marty Stevens-Heebner: (00:16)
How to Move Your Mom (and Still be on Speaking Terms Afterward) provides in-depth conversations with professionals, older adults and their family members who share their stories with warmth, understanding and humor.

Marty Stevens-Heebner: (00:31)
I'm your host, Marty Stevens-Heebner. And here you'll find answers to many of your questions as well as different perspectives that I hope will inform and inspire you.

Marty Stevens-Heebner: (00:42)
Ken, welcome so much to How to Move Your Mom (and Still be on Speaking Terms Afterward). I'm very honored that you're here to talk about both your practices.

Ken Kossoff: (00:52)
Well, thank you. I'm happy to be here.

Marty Stevens-Heebner: (00:54)
Well, you're fantastic. And we've worked together a lot and I just, your clients think you're wonderful and you are a dream to work with alongside being part of a team with you. Ken Kossoff has been an attorney for over 35 years and his practice is based in Westlake Village.

Marty Stevens-Heebner: (01:10)
He's a certified estate planning, probate and trust law specialist here in California. I don't hear a lot of attorneys having that certification, so that's important.

Marty Stevens-Heebner: (01:21)
He's very experienced and compassionate when it comes to helping his clients negotiate the labyrinth of legal issues that inevitably arise as people age into their later years. He's been interviewed by The Wall Street Journal, Fox Business News and lots of other media outlets because he's such an expert.

Marty Stevens-Heebner: (01:39)
Ken is also the founder of, co-founder, pardon me, of Solo Aging Solutions, which provides healthcare agents to uphold their client's healthcare wishes should the need arise. We're going to talk about that a lot more in just a few minutes because it's a very important service and very unique that is offered through Solo Aging Solution.

Marty Stevens-Heebner: (02:02)
Ken, what's your favorite memory of your grandparents?

Ken Kossoff: (02:07)
Well, my favorite memory of one of my grandmothers was when I was probably in my mid-teens. I had an older cousin who had a lot of girlfriends, and I remember my grandmother saying to me, "I've told him he needs to make sure his girlfriends take a pill," and then "It's not an aspirin."

Marty Stevens-Heebner: (02:30)
I love her already.

Ken Kossoff: (02:33)
Yeah. Yeah.

Marty Stevens-Heebner: (02:33)
That's fantastic. You also told me about a very difficult memory you had that was from-

Ken Kossoff: (02:38)
Yeah, yeah. My least favorite memory of my same grandmother. I'm using terms that I now know. At the time, I was maybe 20, maybe 21. She was hospitalized and then discharged to either a rehabilitation facility or a skilled nursing facility. And I went to visit her for the first, actually it was the first and last time.

Ken Kossoff: (03:01)
When I got there, she just almost was crying and pleading with me to take her out of there. And as a 20- or 21-year-old, I mean, I'd never been to a skilled nursing facility before, and I didn't know what to do. I knew I couldn't take her out of there. I mean, she was supposed to be there. She needed care. And it was traumatic, quite honestly.

Marty Stevens-Heebner: (03:24)
Yeah. At that age, sure.

Ken Kossoff: (03:26)
Yeah. Yeah.

Marty Stevens-Heebner: (03:27)
Thank you for talking about that because it really emphasizes how every generation in a family is impacted when somebody's going through the difficulties that eventually arise with later life.

Ken Kossoff: (03:40)
For a lot of people who have, not happy of where they're at in their later lives, they might not really think about the impact that it has on, especially their grandchildren or great-grandchildren.

Marty Stevens-Heebner: (03:53)
True. And all the more reason to start talking about your own later life sooner rather than later and plan for it.

Ken Kossoff: (04:01)
Yes.

Marty Stevens-Heebner: (04:01)
And speaking of planning, what's the focus of your legal work, please?

Ken Kossoff: (04:07)
Well, I do estate planning and what's known as life care planning. Life care planning is a model of practice where you have estate planning attorneys who have either a social worker or a nurse on staff, or are both a social worker and a nurse to assist clients.

Marty Stevens-Heebner: (04:22)
It's wonderful that you have someone like that on your staff because very few attorneys do. I remember asking you about what drew you to this particular field of law, and you said you wanted a more holistic way of approaching people.

Ken Kossoff: (04:41)
Yeah. I mean, I remember I was meeting with a husband and a wife, and we were talking about a whole bunch of things relating to incapacity, mortality, all the things people don't want to talk about about. About their children, about their thinking about life, death, healthcare, their kids.

Ken Kossoff: (04:58)
As they were walking out of my office, the husband turned to me and said, "By the time this process is over, you're going to know us better than anybody else knows us." That made me feel good. And that in so many respects is true.

Ken Kossoff: (05:11)
People talk about very intimate thoughts. And I like trying to make sure that their thinking is reflected in their estate planning documents and that they're not just boilerplate that have nothing to do with them other than their [inaudible 00:05:26].

Marty Stevens-Heebner: (05:26)
Yeah. And that's not who you are. One of the things that's really remarkable is that you really do show such compassion and empathy. What should people be asking attorneys like you when they're interviewing someone to figure out who should put together their estate plan?

Ken Kossoff: (05:47)
Well, I think some people are just focused on price, and I can understand that. But I think the real question should be: What's your approach to people in situations like mine, as I've described them to you?

Ken Kossoff: (06:03)
Frankly, everybody's come to me and everybody always says it's simple estate. No matter how complex it is, they think it's simple. That's just a natural thing to say. And so I think it's really how do you approach people in my situation? What can-

Marty Stevens-Heebner: (06:18)
How would somebody describe your approach?

Ken Kossoff: (06:21)
I think my approach is probably a more human approach. I mean, I'm not just looking at the legal and tax issues. I'm looking at the human issues involved in dealing with incapacity or death. That's why I realize, even if somebody has a ton of money and could afford to have their loved one at home with care for 24 hours a day, seven days a week, life is still going to be very miserable and very difficult.

Ken Kossoff: (06:51)
They need to be prepared for that and understand. They're not the first ones who have experienced it. And try and make sure that the caregiving spouse or the caregiving child is not the one who drops dead first because of all the stress involved in having a loved one for whom you're responsible for caring when you've probably never done that before.

Marty Stevens-Heebner: (07:13)
Yeah. It's a whole new thing. It's like being the executor of a will. Suddenly, you have to take care of something that you don't know anything about. And it is amazing. The statistic is really frightening of how often caregivers, especially if they're caregiving spouses, pass away before the person they've been taking care of does because of, what you said, the stress and everything and the lack of their own care for themselves.

Ken Kossoff: (07:35)
Yeah.

Marty Stevens-Heebner: (07:36)
Very [crosstalk 00:07:36].

Ken Kossoff: (07:36)
I have seen that with caregiving spouses. I've also seen that with the 51-year-old son of an 88-year-old father.

Ken Kossoff: (07:42)
One of the things about comparing it to an executor, I heard an attorney once who said, "The problem is not when you die. The problem is when you won't die." So being an executor or being the trustee of a trust is very complex and is very difficult, but in a lot of respects, pales in comparison to what you have to deal with if the person you're caring for is incapacitated instead of death.

Ken Kossoff: (08:06)
The most difficult cases are the one where there's live issues going on. I mean, one of the most horrible things I've experienced is a 55-year-old diagnosed with early onset Alzheimer's.

Ken Kossoff: (08:20)
Those are very difficult conversations to have with people, with the person and their spouse and finding out about it and reacting to it. This was a person who I'd known beforehand. But I get a lot of satisfaction of just trying to be with them and walk them through what they're experiencing.

Marty Stevens-Heebner: (08:43)
You're really showing your humanity with them. And I find that when we're working in my field too and many others who take care of older adults and their families, in a way it's kind of lovely because you really, you should be showing your humanity. It makes them more comfortable. And especially at the end of life, I think people really appreciate that.

Marty Stevens-Heebner: (09:04)
Now, it's interesting with estate planning; you should do a health care directive. And in terms of one's healthcare when you're incapacitated and what have you, what you were just talking about too, when people are in a coma or they have dementia or something like that, this is where Solo Aging Solutions can be so helpful. Can you explain why you launched the Solo Aging Solutions and also who it serves and how?

Ken Kossoff: (09:31)
Okay. As I mentioned earlier, several years ago, six years or so now, I brought on a medical social worker onto my staff. And there were a lot of times we would give presentations to senior centers or other groups, sometimes just meeting with the clients of the firm.

Ken Kossoff: (09:53)
Invariably, in every presentation we made, especially to a larger group, somebody would raise their hand and they would say, "Look, I've got somebody who could manage my money. I'm not worried about that. What I don't have is anybody who could manage my healthcare. Either I don't have children or my children aren't functional or live far away, or I don't want to place this burden on them."

Ken Kossoff: (10:18)
And as soon as somebody would ask that question, others would chime in and raise their hands and say, "We have the same issue."

Marty Stevens-Heebner: (10:25)
Wow.

Ken Kossoff: (10:26)
The reality of the situation is I didn't have a good answer. You can't say friends and family, because if you say friends and family, they wouldn't have been asking the question.

Ken Kossoff: (10:38)
There are private fiduciaries, people who act as trustees and executors and conservators for a living. And some private fiduciaries or lots of private fiduciaries, actually, will act as an agent under a healthcare directive as the price they need to pay in order to manage the money, where their skills and also revenue primarily comes from.

Marty Stevens-Heebner: (11:00)
Yeah.

Ken Kossoff: (11:01)
Some of them have told me they don't like doing it. Others have told me they don't think they do it very well.

Marty Stevens-Heebner: (11:06)
I mean, literally when you are the healthcare agent, you literally have people's lives in your hands.

Ken Kossoff: (11:13)
Yes. And a lot of us just conceive of that as you get a call at 4:00 in the morning, your loved one had a stroke. "We're either going to give life support or not. What do we do?"

Ken Kossoff: (11:22)
But it's also if the person can't make decisions for themselves, they need to make changes to the medication. They need to get authorization to change medication, to make other medical decisions as to what care to give them short of life support or what care to withhold or withdraw.

Ken Kossoff: (11:40)
So it was because we didn't have a good answer to that question, and I felt bad, that we created Solo Aging Solutions. Solo Aging Solutions is intended to fill that gap where we will act as agents under a healthcare directive. We will not manage money. If people ask us to manage money, the answer's, "No, that's not what we do."

Ken Kossoff: (12:02)
We do only healthcare decision making and we have to do it in two ways. Number one is to make sure that the client's desires are known on a current basis, that their healthcare conditions and prognosis are known on a current basis. The reason why we need to know all that is because our personnel need to feel comfortable with this enormous decision, this position of huge responsibility, life and death, that they now have in their hands.

Ken Kossoff: (12:36)
I mean, my business partner Katie Wiltfong, who's the medical social worker, joined me a number of years ago at my firm. What we need to do is to make sure that we're comfortable and current. And that's why we established the protocol where we have multiple communications with our clients on a regular basis. And [crosstalk 00:12:56]-

Marty Stevens-Heebner: (12:55)
That's extraordinary. And what kind of training do your healthcare agents go through to qualify?

Ken Kossoff: (13:01)
Well, I mean, Katie is a medical social worker who has more than a decade in hospice, so she's been dealing with life and death for a good period of time. One of the things I have told people over the years is Katie could walk into a facility and judge whether the smell is due to the fact that this is just the way some facilities smell because they're in the healthcare business or that there's a hygiene problem.

Ken Kossoff: (13:28)
So it's just, you have to feel comfortable with the issues. You have to feel comfortable with the places where our clients are going to be. And we have to feel comfortable that we know what our clients would want and not want in these circumstances.

Marty Stevens-Heebner: (13:43)
Yeah. Well, and also possess that knowledge. What kind of people would you hire as healthcare agents? What would be their ideal background?

Ken Kossoff: (13:54)
I think their ideal background is probably a hospice background because people in the hospice field, this is what they do. They help people transition from life to death and to die peacefully in as little pain as possible. So I think that's a very good, I don't necessarily know perfect, but that's about as good a background as you could have. And then they-

Marty Stevens-Heebner: (14:17)
Also they're comfortable with the medical issues and things like that. They're well aware of how medications work, that sort of thing.

Ken Kossoff: (14:22)
Yeah. And also because sometimes hospice comes in and the people pass away two days later. But a lot of times-

Marty Stevens-Heebner: (14:29)
That happened with my dad.

Ken Kossoff: (14:30)
Oh, it did?

Marty Stevens-Heebner: (14:30)
That happened with my father. Sorry to interrupt you.

Ken Kossoff: (14:32)
That's okay. A lot of times they're in there for weeks or months on end. And if the patient is not able to give direction on their healthcare, they're very familiar with having to call the agent under the healthcare directive. Because again, it's not just a situation where you get the call at 4:00 in the morning to pull the plug. It's all the steps leading to that over the days or weeks or months before somebody passes away.

Marty Stevens-Heebner: (14:56)
Yeah. Well, and suppose somebody's in a horrible car accident and they're unconscious and their leg is badly injured. And the doctor says, "Well, we may need to amputate."

Marty Stevens-Heebner: (15:07)
Somebody who's an expert like that and understands the whole background of how it will affect the rest of their lives can make a knowledgeable decision, thinking about it and who the patient is. And also listen to what the doctor is explaining what the exact injuries are to determine if that's really necessary to make that decision for the client.

Ken Kossoff: (15:29)
Right. And also, is that only going to impact their leg or has their head been injured too? Is there a brain injury?

Ken Kossoff: (15:35)
So that's, I think, what a lot of clients ... There's probably a lot of people out there who would say, "Okay, if my leg has to be amputated, that's fine if I'm otherwise functional mentally and maybe otherwise functional physically."

Ken Kossoff: (15:47)
But on the other hand, I remember a few years ago, a client came in and was talking about how the doctors had said, "To let your loved one continue to live, we need to amputate all four limbs." And the person said, "How much longer will that give my loved one?" And the doctor said, "Two weeks."

Ken Kossoff: (16:12)
It was like, why would they even mention that? It's not an alternative and it didn't make sense, at least in my opinion. And certainly in their opinion because they said, "No. And, yeah, let them go."

Marty Stevens-Heebner: (16:26)
When should someone consider engaging a healthcare agent at Solo Aging Solutions?

Ken Kossoff: (16:33)
Well, I think when you're capable of instructing us what you want to do or what you would want done in these circumstances. If somebody is already demented or otherwise unable to communicate to us what their desires would be, that probably means that they cannot sign a healthcare directive.

Ken Kossoff: (16:53)
The biggest surprise to us from the perspective of when we first started and how we saw our demographic is that we had a couple of referrals from attorneys of single men, both of whom were 47 years old, total unrelated to each other. They were just unmarried, no children, did not want their parents involved.

Ken Kossoff: (17:15)
It's when people realize that they don't have anybody to make the decisions and they want the peace of mind to know that they do have somebody to make the decisions if they want to participate in our program. For some people, we are just, we are number two instead of number one.

Ken Kossoff: (17:33)
Again, behind the kids. But if the kids can't get here, because even for the kid who lives on the East Coast, prior to March of 2020, everybody said you can just hop on an airplane and come out. And then we learn that maybe that's not guaranteed in the future. So we're the local eyes and ears. Yeah.

Marty Stevens-Heebner: (17:51)
That's wonderful. That's so true. I love that you can be the backup if somebody can't be there. That's wonderful. I didn't know that, so I'm glad I know that now.

Ken Kossoff: (17:59)
Yeah. The kid is most likely going to be leaning on us heavily to try and understand what's going on and to tap into the background of our healthcare agents. Because the adult child, unless they're in the healthcare field, probably doesn't have the background.

Ken Kossoff: (18:19)
Yeah. Right now we are focused in Southern California and with plans to expand elsewhere, hopefully in the not-too-distant future.

Marty Stevens-Heebner: (18:28)
Awesome.

Ken Kossoff: (18:28)
Yeah.

Marty Stevens-Heebner: (18:29)
Let's talk about a healthcare directive, because if someone doesn't have one, I do, they may not know what goes into it. They may be a little nervous about really going and answering all the questions. What kind of things go into a healthcare directive?

Ken Kossoff: (18:47)
Well, in a healthcare directive, the first thing you're doing is appointing somebody who makes decisions for you if you cannot make those decisions on your own. I mean, it is possible to give somebody immediate authority.

Ken Kossoff: (18:59)
But most people do not, unless they're older or have a terminal illness. Then they're pretty confident they're not going to be able to make their own decisions for a very long period of time.

Marty Stevens-Heebner: (19:08)
Yeah.

Ken Kossoff: (19:10)
But, so you're appointing somebody. You're hopefully appointing an alternative that that person cannot serve. Maybe two alternatives. And then you're trying to give them directions on what your thinking is. You're basically saying, "If I'm in an irreversible condition from which death is expected in some period of time, what would I want?"

Ken Kossoff: (19:33)
You could get more particular if you'd like to. You could talk about some of the things that often are not in healthcare directives and are in what are known as POLST, physician orders for life-sustaining treatments, which are a different document.

Ken Kossoff: (19:46)
I was giving a presentation on healthcare directives once with a nurse. And she said in her healthcare directive, it says "You could put a feeding tube in me for 10 days. If I'm not ready to feed myself after that, just pull it out and let me go."

Ken Kossoff: (19:59)
And what you're trying to do, regardless of what's written down, is you want to have conversations on a semi-regular basis with the agents under your healthcare directive. Because what I tell clients is that you never want somebody thinking, "Am I going to let my mother die today?"

Ken Kossoff: (20:15)
You want them thinking, "Mom can't talk. I know exactly what she would want in this situation. I'm just her spokesperson. I'm just expressing what she would say if she were in this position. I'm not making any decisions. She made the decisions when she told me and instructed me on what she would want and what she would not want."

Ken Kossoff: (20:33)
So that's still enormous responsibility that weighs heavily in the minds of the person making the decision.

Marty Stevens-Heebner: (20:40)
Especially if you're a family or just a very dear friend or a spouse, a partner.

Marty Stevens-Heebner: (20:46)
Let's go back to estate planning. It's really not just about a will. I think that's what people think it is, and so they download something from one of those online places and just figure, "Oh, I got a will. I'm done. I'm good." Not a good idea. Let the expert, Ken, explain it to you.

Ken Kossoff: (21:02)
Okay. I mean, the first thing is if you're going in for estate planning, what you want is a comprehensive estate plan. If you're going to use a will and not use a trust and that's a discussion you have with your attorney, that's fine.

Ken Kossoff: (21:17)
But a will is effective only after you die, so it does nothing during incapacity. Doesn't authorize anybody to manage your affairs while you're incapacitated. So the question is, "How's that going to happen?"

Ken Kossoff: (21:29)
I think for my clients, I want their documents to express their views. Not just the legal stuff that lawyers want to see in there but the views of the clients.

Ken Kossoff: (21:43)
Sometimes, clients should write out separate instructions or letters to their family. I mean, if some lawyer writes a boring, legal document as somebody's trying to remember their father who died three days ago, they're not going to sit there reading his trust. But if the father wrote a letter telling how much she loved his children and grandchildren and maybe some lessons and ...

Ken Kossoff: (22:06)
Working on one right now where the client sort of has a message to a judge if there's ever a dispute. Where he basically said, "I know that sometimes at least one side is upset with the resolution of litigation, if not both sides. And if my family's going to fight over my estate, Judge, I would like you to come up with a decision that pisses both sides off. Because if they're going to fight about my estate, they should be upset because I'll be upset. And if I can do anything about it in the afterlife, I will."

Ken Kossoff: (22:37)
I mean, even when I do that, it's still boilerplate. It's important legal stuff in there, but it's boilerplate. But I like the client's family being able to look at the document and say, "Oh, this is the exact kind of thing that my father would've said."

Ken Kossoff: (22:51)
As I tell people, the only thing I know for certain that something's going to happen that we don't anticipate. And if it's addressed in the trust document, then it makes it easier to deal with and less likely to require judicial intervention or something along those lines.

Ken Kossoff: (23:07)
I had a client once who came to me when there was a dispute with his sibling over his mother's trust. And he previously told me how proud he was that through his efforts, his mother's trust was a lot shorter than all these long documents that most lawyers draw.

Ken Kossoff: (23:25)
Unfortunately for him, it was missing one paragraph that would've resolved the issue. Instead, he litigated with his sibling for a considerable period of time, and if one boilerplate paragraph had been in there, it would've been too late for the sibling to do anything.

Marty Stevens-Heebner: (23:41)
Well, there you go.

Ken Kossoff: (23:42)
Yeah.

Marty Stevens-Heebner: (23:43)
And that's why they come to attorneys like you who are smart and know how to express why something needs to be there. It's ridiculous because I hate to think how much money they spent on all the legal fees that otherwise would've gone to them or whomever were the beneficiaries.

Ken Kossoff: (23:58)
Yeah. It's amazing how much people will spend. Just the way I explained it is, "You broke my GI Joe when I was six and you were eight, and we're now 66 and 68, but I'm going to get back at you for that." And that's sort of the way it happens.

Marty Stevens-Heebner: (24:15)
It's such misplaced anger because it's really, the bigger issue is the grief and it's just being expressed in a very odd way. Or, like you say, they have this old grudge or something.

Ken Kossoff: (24:24)
Yeah. Deep-seated psychological issues with siblings. Yeah.

Marty Stevens-Heebner: (24:29)
"Go buy yourself another GI Joe," is what I'd say to that person.

Ken Kossoff: (24:32)
Yeah. Yeah.

Marty Stevens-Heebner: (24:34)
One last thing. I've heard, and actually my father put both my sister and I on his healthcare directive. We don't have a great relationship, and I was just relieved because we did agree on what to do.

Marty Stevens-Heebner: (24:48)
But it's really not a wise idea to have multiple parties on healthcare directives and as executors and trustees. Am I correct in that?

Ken Kossoff: (24:56)
Well, I think it's less wise to do it on healthcare directives than as trustees. The reason I say that is because let's say you have three children, and you say, "I want my three children to be my decision makers under my healthcare directive and it's majority rule." And two of them say, effectively, "Pull the plug," and one says, "Don't pull the plug."

Ken Kossoff: (25:18)
What I would expect the hospital to say for risk management purposes is, "Go get a court order." Because they're not going to want to pull the plug on the majority rule because they're afraid that the dissenter is going to sue them. So that's why I fear having more than one healthcare decision maker.

Ken Kossoff: (25:37)
Some people still insist on it, and that is certainly their prerogative. And if it creates problems, they understand that. But I'm more cautious about doing that with healthcare directives than I am about doing that with trusts.

Ken Kossoff: (25:51)
See, but one of the things you can do on a healthcare directive, if you have an attorney and the attorney signs the particular affidavit saying that he or she advised you, is you could exclude people from interfering with your health care decision.

Ken Kossoff: (26:08)
So if you have family members or friends, or you're concerned about some public agency that's specified in the probate code, the public guardian, you could list those people and effectively say they do not have standing in court to sue concerning your healthcare directive and the acts that your agents are taking or declining to take.

Marty Stevens-Heebner: (26:31)
If a divorce isn't final and there is a spouse legally still hanging out there somewhere who wants to interfere, that's very important. I'm glad you shared that. Thank you.

Ken Kossoff: (26:41)
Yeah. Because most likely your spouse would want to kill you before you need it. Yeah. [crosstalk 00:26:44].

Marty Stevens-Heebner: (26:45)
Yeah. All the more reason not to have them interfering with your healthcare.

Ken Kossoff: (26:48)
Yeah.

Marty Stevens-Heebner: (26:49)
Ken, thank you so much for sitting down and talking with me because all of that information was so helpful. You're a wonderful estate planning attorney. And also Solo Aging Solutions, it's a unique service that's offered and it's just wonderful. Thank you so much for being with me.

Ken Kossoff: (27:06)
All right. My pleasure. Thanks.

Marty Stevens-Heebner: (27:09)
Thank you so much for listening to How to Move Your Mom and (and Still be on Speaking Terms Afterward). Please visit howtomoveyourmom.com for more information about this episode and for additional podcast episodes, featuring other extraordinary guests and conversations. Until next time, this is your very grateful host, Marty Stevens-Heebner.