I grew up as a teenager in Hawaii and graduated from Punahou School, a prestigious private school in Honolulu. The author of the Descendants is a Punahou graduate and her father, Fred Hemmings, Jr. was a football star and world champion surfer that graduated a few years ahead of me. Her uncle, Aka Hemmings graduated a year after me. I have known the Hemmings for over forty years
Several scenes were filmed on campus and one prominent scene was filmed at the home of an old Punahou friend (who also played a small part). The dialogue includes several references to key characters as being Punahou students and graduates. Not surprisingly, I knew I was going to enjoy the movie the simply because of my strong connection to Hawaii.
So what does that have to do with estate planning? Amidst the beautiful scenery and George Clooney (Matt King is his character), the movie addresses several estate planning themes about which I am often asked.
Directive to Physicians (Living Will) – The movie starts with Matt King’s wife (Elizabeth King, played by Patricia Hastie) in a coma from a head injury sustained in a boating accident off of Waikiki Beach. She had signed the Hawaii equivalent of a Directive to Physicians, providing that she did not want to be kept alive by artificial means. That seemed simple enough, but as the characters developed and the many themes and family conflicts unfolded, the Directive to Physicians proved to be a final expression of love and respect. Without this Directive the family could have faced challenges similar to the seven year legal battle that embroiled the Terri Schiavo family in Florida a few years ago. It is assumed that Elizabeth had also executed a Durable Power of Attorney, Medical Power of Attorney, and HIPAA Authorization to facilitate the handling of her affairs.
Living Trust – Another theme of the movie revolves around 25,000 acres on the island Kaua’i that has been held in trust and preserved in its pristine natural state for decades. Matt is the trustee of the trust and facing the pressure of a long line of descendants who want to sell the land for a multi-million dollar windfall. Although this is an extreme circumstance, it illustrates how a trust can be used to control the timing of the distribution of property beyond the death of the trust creator (subject to the Rule Against Perpetuities). A trust is most often used to hold and invest assets for the benefit of children and delay large distributions until the children are older and more mature.
Memorial Instructions and Funeral Arrangements - After Elizabeth’s death, Matt and his daughters spread her ashes in the ocean off the beach at Waikiki, representing her love of the ocean. However, in some families a dispute could arise between selecting (i) a traditional burial or cremation, or (ii) if cremated -preserving the ashes or spreading them at a favorite location. The Texas Health and Safety Code, Section 711.002 provides for the written Appointment of Agent to Control Disposition of Remains to minimize such disputes. It is important to express your wishes in writing, particularly in blended families or unique situations.
Rule Against Perpetuities – It is not an easy rule to understand but was a predominant theme in the movie – so here is a topic for casual conversation. Although some states have abandoned or expanded the rule, Texas preserves this rule for non charitable trusts. The rule provides that property cannot be held in trust forever. At some point title must be finalized by permanent ownership, not later than 21 years after the life of a person that exists at the time of the trust interest was created.
Every family has a different set of facts, but the problems solved by proper generational planning remain the same.
© Will Morris, JD, LLM 2014