0:09 Speaker 1: Welcome to the Estate of Mind podcast featuring Zakiya Norton and Somita Basu of Norton Basu LLP, bringing you the latest estate planning and probate news and observations. Norton Basu is your preferred Silicon Valley-based estate planning and probate law firm.
00:28 Zakiya Norton: Hi, this is Zakiya Norton.
00:30 Somita Basu: And this is Somita Basu.
00:31 ZN: We are here today to talk about the NFL, CTE and related incapacity issues.
00:38 SB: So, those of you who have been following the NFL season, you know, it’s the last two weeks of the regular season, playoffs start first week of January. Personally, Zakiya and I have not been really following. We are following… We are 49ers fans, so we’ve had a pretty disappointing season, to say the least. For that and other reasons, we haven’t really been following, but there have been a number of issues about concussions and neurological health related to the NFL and football players that have been in the news.
01:10 ZN: And I think most prevalent of that is there’s just been much more talk about concussions and, of course, the most notorious thing going on with that is CTE.
01:20 SB: Yeah. So, CTE is something that I know most of you have probably heard about. It is a neurological degenerative disorder which an overwhelming number of NFL players, who have passed away, have been found to suffer from. The problem with CTE is they can’t, as of this point in time, it cannot be diagnosed until after a person has passed away.
01:44 ZN: Right. So there’s a lot of questions right now about how do you get it, how does it manifest over your lifetime, what will the early symptoms be, and I think there’s a lot of research that’s happening now to try to pin down all of those trigger points related to CTE.
02:00 SB: Yeah. I think there are currently, just as an aside, they’re working on both the blood tests and imaging tests that would allow medical professionals to diagnose CTE in somebody who’s living. There have been a number of high-profile football players, stars actually in the NFL, who have stated that they would like to… Once those tests are up and verified, they would like to have those tests, they wanna know if they have it, and I think that’s a good change. That’s a signal there’s a high amount of awareness in the league of what CTE is and what it can do, but it brings up some very interesting questions in terms of how to plan for a potential incapacity.
02:40 ZN: Right. Because I’m sure all of you were thinking, “Okay, that’s great, CTE, but what does this have to do with estate planning?” So, to answer that question, what it has to do is a lot of people associate estate planning with something that you do to plan for your death, and a lot of people don’t think about the many ways and advantages that having a estate plan can help you plan for different things that may happen during your lifetime.
03:03 SB: Right. And one of those things is incapacity. When you talk about incapacity, everybody thinks about dementia, Alzheimer’s, something in that lane of neurological problems, but CTE brings up a very interesting question. What if you knew that you might get CTE, but as of right now you’re fully capable of doing everything? The problem with that is there are a lot of unknown side effects of CTE. For example, the very sad story of Aaron Hernandez. He was a star football player throughout his entire life, he was a superstar with the Patriots, he was convicted of a double homicide, he was sentenced to life in prison, he killed himself in prison, and the post-mortem on him, including on his brain, showed the most severe case of CTE ever in a man of his age, which was very, very young.
04:01 ZN: Right. And so what that brings up is, “Okay, how can I plan for if I become incapacitated during my lifetime?” And we’re talking now at younger ages than what people think about, which is what Somita just said, and so a great way to be able to plan for something like that is by having an estate plan. And the reason that that’s a great tool is that having an estate plan, and what I mean by that is a will, a revocable living trust, a power of attorney and an advanced healthcare directive, what that will do is allow you to assign somebody or several people who are going to be able to step in and make those decisions for you, manage your finances, make healthcare decisions for you, if you become incapacitated. Because the alternative is, you don’t have anybody designated, you don’t have an estate plan and unfortunately it requires then your loved ones, friends and family, to go to the court. And then the court is gonna assign that person. They’re gonna pick whoever it is, and you’re not really gonna have a say over who gets assigned those roles, and you’re not gonna have any say about what kind of decisions they can and can’t make for you. Whereas, you can designate those people and also give them some guidance and direction about what kind of decisions you would like them to make in specific situations.
05:12 SB: And I think one of the things, particularly in this situation, so if you’ve played these contact sports growing up, especially in your formative years, and you think this could be something that could be an issue for you, CTE, as we said, right now can’t be diagnosed while you’re alive. So you could be behaving erratically and you would not have a diagnosis of something that’s neurological to make the court or somebody else understand that there’s something going on with you. If you have the estate plan in place, those people, when they see that maybe you’re acting a little bit erratically and they know, your agents, the people you’ve assigned, they know your history, they can step in and do what needs to be done without court intervention, and it just makes it a lot smoother and a lot more efficient.
05:57 ZN: Agreed. And I think, with the prevalence of all the advances that are being made in research in this area, plus with all the DNA testing and things like that that are happening, we’re gonna have a lot more information about what diseases or more ailments we might be predisposed to have. And so here’s an opportunity now to say, “Okay, there’s X, Y, Z percentage that I might get this thing, let me make sure that I have everything structured and set up in place just in case this happens.” And so you’re not caught trying to scramble and figure this out when you’re up against something, or worst case scenario, it’s too late, and now we’re in court and we’re in an expensive lengthy process that your friends and family have to go through.
06:37 SB: Yeah. Like with all things related to estate planning, it’s a lot of what ifs. I’m thinking about all the different what if scenarios, and while it is hard to think about these kinds of things about losing capacity and the ability to manage your own affairs, if you think about it and put a thorough estate plan in place, you’ve taken care of it. And if it happens you’re taking care of your finances or taking care of… You know that your wishes have been written down somewhere or somebody will be following those wishes to the best of their ability, and you cannot really revisit it until you need to, or you change your mind on something.
07:14 ZN: Right. So, it’s always better to take control of what’s gonna happen instead of reacting and waiting for these things and then trying to figure out what you’d like to do. So, as always, with us, we will tell you it’s better to plan ahead, better to be safe than sorry, and it’s better to start thinking about these things sooner rather than later.
07:32 SB: Yeah. It’s always better to be several years too early than even one day too late.
07:35 ZN: That’s right. That’s right. So, we hope this information was helpful and thank you for joining us, and we will see you and talk to you next month.
07:46 S1: Thanks for listening to Estate of Mind. Join Zakiya Norton and Somita Basu on the next podcast discussing the latest estate planning and probate-related news and observations. You can find the full transcript of this podcast on our website at www.nortonbasu.com. None of this content should be construed as legal advice. As always, consult your lawyer.