Preparing For Your Death

As Halloween is fast approaching, I thought that I would post about a rather morbid topic--preparing for your death.  Now we all know that death is inevitable, but we don't like to think about it.  However, it is really important that we have our plans in order so that our loved ones don't have to make these decisions for us while they are grieving.  So, I have prepared this list of a few of those things that we must all do in order to prepare for our deaths.  But remember, this type of a checklist can only be effective if we do those items on the list and if we put the completed checklist in a place where our loved ones can find it after our death.

1. Prepare a will.  I have previously posted on the importance of having a will, so see this post for more information about why a will is necessary.

2. Decide whether you would like to become an organ donor.  Organ donation can save many lives as well as enrich many lives, however, it is an intensely personal decision.  It is important to make this decision as early in life as possible, as we never know what may happen to us.  It is even more important to tell our family members of our decision and to memorialize the decision on our driver's licenses.

3. Decide whether you would like a funeral or a memorial service, and plan the service.  In essence, the difference between the two is that the body is present for a funeral and is not present for a memorial service.  A service typically involves use of poems or scripture, songs, and eulogies.  There are many websites available that assist in deciding what to songs, poems, and scripture to use.  Funeral directors as well as clergy can also be useful resources, as they have experience in planning these services.  However, remember that the service will be about you, so your preferences should be key.  The service can be very traditional or can be very unique.

4. Decide whether you would prefer burial or cremation.

5. Choose a funeral home.  Choosing a funeral home can make a world of difference for the family of the deceased.  It is important to focus not only on the cost, but also on the staff of a funeral home.  If they are easy to work with, professional, and kind, it will make the experience much easier for family.

6.  Keep copies of your will, living will, durable power of attorney, insurance policies, your checklist of wishes, funeral plans, and other important documents together in a fireproof safe where your loved ones are able to find it.  In the age of Internet, it is also wise to keep a list of your email and other online accounts with user names and passwords so that these accounts can be closed.

There are books and articles written on planning for death that are much more extensive than this post.  One that I have not read, but which seems to be well received is Death for Beginners.  A review of the book can be found here.

Obviously this list is not comprehensive, but instead is meant to get you thinking and planning for the eventuality of your death, so that it will be easier for your loved ones.  Please feel free to add additional items in the comments to this post, or to e-mail me.

Update 11/01/2010: This morning, I saw this interesting post about options for your body after death besides the traditional burial or cremation.

A couple of interesting stories about South Dakotans

Hi everyone! I know that this is a bit different than my previous posts, but I just wanted to share a couple of clips about some very interesting South Dakotans. I found these stories compelling, and hope you will, too.

Doc Farber

Larry & Betty Smith

Hope you enjoy!

Exceptional Pardons & Expungement of Convictions

After my previous post on expungements of arrest records and court files when charges have been dismissed or trial results in acquittal, I have received inquiries about whether South Dakota permits expungement of convictions. My initial answer was no, South Dakota law does not provide for expungement of convictions. However, after a bit more research, I have found that there is an additional procedure which may accomplish some of the same goals as expungement of a conviction, but which has several restrictions on its use--an exceptional pardon.

Exceptional pardons are considered "executive clemency" and are governed by SDCL Chapter 24-14 and ARSD 17:60:05. According to the South Dakota Board of Pardons and Paroles Executive Clemency Application, "[i]f it has been five years since your release from a Department of Corrections facility, and you have only been convicted of one felony, and your only felony was not punishable by life imprisonment, you are eligible for an Exceptional Pardon."

Once an individual receives an exceptional pardon, the records relating to that conviction are sealed, meaning that no one can look at the file without an order of the court. However, the exceptional pardon itself is maintained by the Secretary of State's office, and is a public record open to inspection for five years after the pardon is granted. After five years, the exceptional pardon document is also sealed. Immediately upon the granting of an exceptional pardon, the individual cannot be prosecuted for perjury for failure to disclose the conviction, arrest, information, indictment, or trial on the pardoned offense. Court files, from other types of executive clemency (i.e. anything other than an exceptional pardon), are not entitled to be sealed.

There are several documents that must be received by the Board of Pardons and Paroles to consider a request for an exceptional pardon:

- The completed Executive Clemency Application (with questions answered fully or with "N/A").

- The completed Notice to State's Attorney form.

- The completed Executive Clemency Application Release of Information.

- Letters of recommendation (referencing that the letter writer is aware that the applicant is seeking executive clemency) from minister, former & present employers, reputable persons in the community, family and friends are strongly encouraged, although not required. If the applicant does not include letters of recommendation, an explanation is required.

- A psychosexual evaluation (for sex offenders only).

- A chemical dependency evaluation (for those convicted for drugs and alcohol only).

- A psychological evaluation (for those with diagnosed mental health issues only).

- Proof of payment of court costs, fines and restitution for each conviction.

- A Department of Corrections Discharge Certificate.

- Certified Copy of Sentence and Judgment.

- Proof of Service on each State's Attorney.

- Written statement of the applicant describing the crime/incident.

- Letter of personal plea from the applicant.

It is possible for an applicant to submit these materials pro se (without being represented by an attorney). However, consulting with a criminal defense attorney is wise, as that individual will have experience in handling these types of applications, and can advise the applicant as to the likely merits of the application and how to best posture the application (i.e. whether certain letters are helpful, whether the applicant should seek treatment, counseling, etc.).

Whether the applicant chooses to apply pro se or chooses to seek the assistance of an attorney, it is wise for the materials to be presented in the most coherent and organized fashion as possible. Having the documents put into a binder or binding the application is a good idea, so that materials cannot be separated and lost. Using tabs and separating pages is a great idea, so that the Board is able to easily find the documents that they are looking for.

Children of Incarcerated Parents

I'm currently appointed to represent several children in abuse and neglect proceedings. Among my clients are children of parents who are currently incarcerated and children of parents who have been incarcerated at some point in their lives. So when I saw this post on the Freakonomics blog of the New York Times, stating that 1 in every 28 children in America has a parent behind bars, I was really intrigued. Intrigued that incarceration of parents affects so many children, and intrigued to find out what kind of impact that has on those children. It also made me start thinking about what parents do with their children when they are looking at either long or short term incarceration; and how are those children's needs being met when their parents are not earning an income during incarceration, or are only earning an income sufficient to buy cigarettes and candy.

According to at least one source, the number of incarcerated individuals has grown every year for the last 36 years. According to another source, more than one in every 100 adults in the U.S. are incarcerated in either prison or jail. 63% of those who are in federal custody and 55% of those who are in state custody are parents of a child under the age of 18 (a different source states that 54% of all inmates have children between the ages of 0 and 17). This means that over 1.5 million children have a parent who is serving a prison or jail sentence; that's approximately 2% of American children. Of those children with incarcerated parents, 22% are under the age of five; and their average age is 8 years old.

What does it mean for children to have an incarcerated parent? Financial instability, family relationship instability, school performance and behavioral issues, and stigma (see this). Some of these issues, especially financial instability, continue long after the parent is released from custody. This is because "[i]ncarceration reduces former inmates' earnings by 40 percent and limits their future economic mobility," according to a Pew Report (the full report and a summary). In addition, incarceration not only negatively impacts the inmates upward economic mobility, but also the economic mobility of children of inmates.

So what do parents do with their children when they are going to prison or jail? Typically, parents make arrangements with a family member or close friend to care for the children while they are incarcerated. This appears to usually be done informally, either with nothing in writing, or a power of attorney written by the parent. It appears that parents and those who care for the children of incarcerated parents do not typically go through a formal guardianship process, although this is highly recommended. A formal guardianship, including a temporary guardianship, provides stability and certainty to the relationship. A guardianship means that the child's caretaker will be given access to information about the child and will be able to make medical and other types of decisions regarding the child without any delay or uncertainty.

How are children's needs being met while a parent is incarcerated? South Dakota law requires parents to pay child support for their children, even while incarcerated. If the parent's income is below minimum wage, or even zero, the parent is presumed to be capable of full-time employment at minimum wage. This means that child support is calculated based upon that full-time employment at minimum wage for an inmate, unless there is physical or mental disability. However, where the inmate makes just a few dollars per day, they are likely to not be able to meet the child support obligation and will come out of prison or jail with a large amount of child support arrearages. This also means that the state often must get involved and provide benefits to support the child.

There are resources available to help those who are dealing with the incarceration of those with children. See these free publications if you are in this type of a situation or may be at some point. In addition, an attorney can be really helpful in setting up a guardianship, obtaining child support, or even just helping you know what you need to do.

What To Do (& Not Do) When Speaking for Court Reporters

During my clerkship in Sioux Falls, I took on a part-time job working with a court reporting program. My primary job duty consisted of dictating materials for court-reporting students to take down on their stenography machines. In addition to my official job duties, I considered the part-time job to be a valuable learning tool for myself to learn how to best speak so that the court reporters I come across in my career can make a solid record. I had no experience with court reporting prior to that part-time job, but certainly now know a whole lot about court reporters' preferences. So, as most people are not fortunate enough to get the opportunity to hear straight from the court reporter's mouth, I thought I'd pass along those pointers that I learned from my time working in a court reporting program. These apply pointers apply to attorneys and to witnesses.

#1: Speak slowly.

Most people speak too quickly, especially when they are nervous. People are more likely to be nervous when in court or in a deposition, and this is when court reporters are trying to take down every word that you say. Therefore, if you would like the court reporter to take down every word that you say, speak slowly. Chances are that you are probably speaking more quickly than you think, anyway. This rule is even more important if you are using medical terminology or other specialized terms which the court reporter is not likely to encounter very often.

#2: Read even more slowly.

People read much more quickly than they typically speak. If the document that you are reading is important (and it probably is, or you wouldn't bother to read from it), then you should slow down while reading to make sure that the words are on the record.

#3: Spell difficult names & specialized terms of art.

If your name is Smith or Jones, you don't need to spell it. If your name is more complicated, spell it for the court reporter (and don't forget to spell slowly). The same rule holds true for medical terms or other specialized terms. If you would like the transcript of the hearing/deposition/etc. to have correctly spelled words, and those words are not in the lay person's vocabulary, spell them for the court reporter.

#4: Don't go off on tangents.

If the court reporter asks you to repeat something that you have said, do just that--repeat what you said. Do not go off on a tangent explaining the concept or background story to the court reporter. The court reporter was not asking you to repeat yourself because s/he did not understand what you were talking about, but only because s/he did not hear or understand the words that you said.

#5: Do not interrupt or speak over another person.

A court reporter can only take down one speaker at a time. When people talk over one another or interrupt each other, the record becomes muddled and may even be missing some of what was said. Wait until one person has finished speaking before you speak.

#6: Answer out loud, using real words.

Do not nod or shake your head, as a court reporter can only take down verbal responses. Try to minimize mmm-hmm, hmm-mmm, uh-huh, and huh-uh, as these can be taken down by the court reporter but are open to interpretation. Use "yes," "no," and other real word verbal responses.

#7: If the court reporter is marking an exhibit, do not speak.

When the court reporter's hands are off of the machine, s/he cannot take down what is being said. Therefore, when the court reporter is marking an exhibit (i.e. writing on an exhibit sticker and placing that exhibit sticker on a document or other type of exhibit), s/he cannot possibly take down what is being said, and attorneys and parties should not speak at this time.

You Have the Right to Remain Silent

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." These words begin those famous warnings that we all know from television cop shows as Miranda warnings. My guess is that most people do not think twice about what these words mean when a police officer has just read their rights to them. This is understandable. When a person is in a situation in which a police officer is reading Miranda warnings, the person is in the custody of the police, may be in handcuffs, may be in the back of a police car or in a small interrogation room of a police station, and likely feels extremely vulnerable and unsure about what is happening. However, this is the time when you need to think about what police officers are telling you and what it means for you. So here is my quick and dirty guide to why you should listen to the police and invoke your right to remain silent.

When the officer is telling you that anything you say can and will be used against you, they mean it. Rules of evidence permit statements made by a criminal defendant to be admitted into evidence, whether the defendant testifies in court or not. Even if the statements do not seem to be harmful to your case, they very likely still may be. When you are being interrogated by the police, you have no idea what other evidence they may have against you. Unless you are an attorney or have done a substantial amount of research into the elements of each individual law, you probably also do not know what the State must prove in order to convict you of a crime.

As Darryl A. Goldberg stated in his 2008 article entitled, Responding to the Middle-of-the-Night Call from an Arrested Acquaintance, "A confession is the most powerful piece of evidence for the prosecution. What you see on TV certainly rings true in almost every case: whatever you say can and will be used against you." Confessions are often the main piece of evidence used to convict a criminal defendant. Keep quiet, do not confess to a crime or make any statements that could be used to prove that you committed a crime, and the State's job of proving you guilty is much more difficult. Moreover, research has shown that even innocent people sometimes make incriminating statements or outright false confessions. See this, this, and this. Don't take the risk that your statement may be interpreted as incriminating or that you may succumb to police pressure.

So how do you make sure that questioning ceases and that you will not continue to be questioned? Simply say: "I do not wish to speak with you. I would like to speak with an attorney right now." This ensures that you have invoked your right to remain silent, and also that the questioning must cease because you have requested an attorney. In addition, you should then speak with a criminal defense attorney as soon as possible, so that the attorney may represent your interests in dealing with police and with the State and ensure that you are not questioned further.

You (Yes You!) Need A Will, Too.

Recently, my boyfriend became an uncle. His brother and sister-in-law became the proud parents of a beautiful baby boy. That combined with the large number of my friends who have recently gotten married, purchased houses, and begun having children made me start thinking about estate planning. Really, I kid you not, it did.

Many people think that they do not need a will. However, I believe that many of these people have not really thought through the consequences of dying intestate. Ask yourself, do you know how the laws of intestacy will dispose of your property? Have you thought about what dying without a will means for your loved ones in administering your estate? Have you thought about what would happen to your children if you die without a plan for them?

Estate planning is more than just a will telling everyone who gets your "stuff" when you die. It is a plan for who makes decisions about that "stuff." It is a plan for who takes care of your children and makes decisions regarding their welfare when you die. Estate planning can include plans for how you would like your remains handled after you pass away through the inclusion of burial & funeral plans. Estate planning can also include reassurance to your loved ones about your faith in a higher being.

For many though, estate planning also includes decisions about end of life issues through documents such as living wills and powers of attorney. These types of documents allow you to make decisions about medical treatments in the event that you are in a terminal condition and are unable to participate in making those decisions. They also allow you to decide now who is able to make financial and business decisions for you in the event that you are unable to do so.

When you are ready to begin estate planning, you should consult with an attorney. Estate planning attorneys are able to assist you in meeting your goals for end of life care as well as how you would like matters handled after you die. I urge you not to rely on a computer generated will, living will, or power of attorney or to simply "do it yourself." See this and this for problems that can occur from DIY and computer-generated wills. Only through consultation with a competent attorney will you end up with documents which meet your goals and which are in accordance with state law.

So, what are you waiting for? Call your attorney and get your estate plans in order!