Category: HIPAA

Single Parents Need Estate Planning

Single Parents Need Estate Planning

For single parents, estate planning is an even greater need than for married couples, advises a recent article, “Estate planning 101 for single parents,” from The Orange County Register. However, even single parents blessed with a strong support system need an estate plan to protect their children. Single parents need estate planning. Here’s why.

An estate plan names a guardian in the will. Who will raise your children and become their guardian if you unexpectedly die or become incapacitated? If the other parent is surviving and has not lost parental rights, they will have custody of the child or children as a matter of law. This is not guardianship.  They are the legal parent.

However, if the other parent is deceased or their parental rights have been terminated, the court will need to grant guardianship. You need two documents to name a person whom you would want to raise your child. One is your will. It’s a good idea to list more than one person, in case someone named cannot or doesn’t wish to serve.

For example, “My mother, Sue Sandler, and if she cannot serve, then my brother Mike Sandler, and then my friend Leslie Strong.” There’s no guarantee that the court will appoint any of these people.  However, the court may consider the parent’s preferences.

Depending upon your state, you could have a “Nomination of Guardian” document separate from your will. Remember that your will becomes effective only upon your death. If you become incapacitated, this document would be considered when determining who will be named guardian.

You’ll also want a health care directive. This document states who is authorized to make health care decisions for you, if you cannot, and provides general directions about what kind of care you want to receive.

If there are minor children, a “Nomination of Health Care Agent” should also be in place, where you nominate another person to make healthcare decisions for your children if you cannot. For example, if you and your children are in a car accident and you are incapacitated and can’t respond to authorize health care, hospitalization, or other care for your child.

A will and a trust are critical if you have minor children. The will sets forth your nomination of guardians, and a trust can hold your assets, including life insurance proceeds and any other significant assets for the benefit of your children as directed in the trust. The trust is managed by the successor trustee appointed in the trust document. Even if the other parent lives and the child lives with them, the trust is controlled by the trustee, so your ex cannot access the money and the children receive the funds according to your wishes.

If you have only a will and die, your estate will go through probate and assets will effectively be put into a trust for the child and be given to the child when they become of legal age. However, most 18 or 21-year-olds are not mature enough to manage large sums of money, so a trust managed by a responsible adult with a framework for distribution will ensure that the assets are protected.

Once a child reaches the age of legal majority, they are considered an adult. As a result, the nomination of a guardian is no longer necessary, nor is the nomination of a health care agent. However, this is when they need to execute their health care directive, power of attorney and HIPAA form. If they were to become seriously sick, even as their parent, you would not have any legal right to discuss their care or treatment with health care providers without these documents. Single parents need estate planning to ensure the future care of their children. If you would like to learn more about estate planning for single parents, please visit our previous posts. 

Reference: The Orange County Register (March 12, 2023) “Estate planning 101 for single parents”

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Divorce requires a Review of Estate Planning

Divorce requires a Review of Estate Planning

Even the most amicable divorce requires a review and update of your estate planning, as explained in a recent article from yahoo! finance, “I’m Divorcing. Will That Impact My Estate Planning?” This includes your will, power of attorney and other documents. Not getting this part of divorce right can have long-term repercussions, even after your death.

Last will and testament. If you don’t have a will, you should get this started. Why? If anything unexpected occurs, like dying while your divorce is in process, the people you want to receive your worldly goods will actually receive them, and the people you don’t want to receive your property won’t. If you do have a will and an estate plan and if your will leaves all of your property to your soon-to-be ex-spouse, then you may want to change it. Just a suggestion.

State laws handle assets in a will differently. Therefore, talk with your estate planning attorney and be sure your will is updated to reflect your new status, even before your divorce is finalized.

Trusts. The first change is to remove your someday-to-be ex-spouse as a trustee, if this is how you set up the trust. If you don’t have a trust and have children or others you would want to inherit assets, now might be the time to create a trust.

A Domestic Asset Protection Trust (DAPT) could be used to transfer assets to a trustee on behalf of minor children. The assets would not be considered marital property, so your spouse would not be entitled to them. However, a DAPT is an irrevocable trust, so once it’s created and funded, you would not be able to access these assets.

Review insurance policies. You’ll want to remove your spouse from insurance policies, especially life insurance. If you have young children with your spouse and you are sharing custody, you may want to keep your ex as a beneficiary, especially if that was ordered by the court. If you received your health insurance through your spouse’s plan, you’ll need to look into getting your own coverage after the divorce.

Power of Attorney. If your spouse is listed as your financial power of attorney and your healthcare power of attorney, there are steps you’ll need to take to make this change. First, you have to notify the person in writing to tell them a change is being made. This is especially urgent if you are reducing or eliminating their authority over your financial and legal affairs. You may only change or revoke a power of attorney in writing. Most states have specific language required to do this, and a local estate planning attorney can help do this properly.

You also have to notify all interested parties. This includes anyone who might regularly work with your power of attorney, or who should know this change is being made.

Divide Retirement Accounts. How these assets are divided depends on what kind of accounts they are and when the earnings were received. The court must issue a Qualified Domestic Relations Order (QDRO) before defined contribution plans can be split. The judge must sign this document, which allows plan administrators to enforce it. This applies to 401(k) plans, 403(b) plans and any plans governed under ERISA (Employment Retirement Income Security Act of 1974).

Divorce is stressful enough, and it may feel overwhelming to add estate planning into the mix. However, divorce really requires a complete review of your estate planning. Doing so will prevent many future problems and unwanted surprises. If you would like to learn more about the effects of divorce on your planning, please visit our previous posts. 

Reference: yahoo! finance (Feb. 3, 2023) “I’m Divorcing. Will That Impact My Estate Planning?”

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Advance Directives are Critical to your Planning

Advance Directives are Critical to your Planning

Advance directives address the type of healthcare and medical treatment you’d want if you become incapacitated. MarketWatch’s recent article entitled “What happens if you’re incapacitated? How to get your advance directives in order” says if you don’t make these decisions now—and complete the necessary forms to state your wishes—someone else will make the decisions for you down the road. Advance directives are critical to your planning.

Advance directives typically consist of a living will and a power of attorney for healthcare. Each state has its own statutory advance directive form. Because these state forms are legal documents, the wording can be pretty formal. People will sometimes forget they’ve filled out the forms. They also forget where they put them.

After completing the proper forms, you must get them to your medical providers, so they know whether to resuscitate you during a medical emergency or administer artificial feeding or hydration.

Make sure you have a discussion with your physician, family and close friends about your values, goals and fears concerning advance care planning.

You should tell them what forms of medical intervention you’d find acceptable and unacceptable—and what level of life-sustaining treatment you’d like if you’re deemed permanently unconscious. That may include considering these types of situations:

  • If I am unconscious, in a coma, or in a vegetative state and there is little or no chance of recovery
  • If I have permanent, severe brain damage that makes me unable to recognize my family or friends (for example, severe dementia)
  • If I need to use a breathing machine and be in bed for the rest of my life
  • If I have a condition that will make me die very soon, even with life-sustaining treatments
  • If I have pain or other severe symptoms that cause suffering and can’t be relieved
  • If I have a permanent condition where other people must help me with my daily needs (for example, eating, bathing, toileting).

When sharing your end-of-life wishes with your physician, he or she may enter your comments into your electronic health record. That way any other healthcare provider with access to those records (such as a hospital system) can retrieve them. Advance directives are critical to your planning. Work closely with your estate planning attorney, who will have the experience to help you navigate these decisions. If you would like to learn more about advance directives, please visit our previous posts. 

Reference: MarketWatch (Oct. 14, 2022) “What happens if you’re incapacitated? How to get your advance directives in order.”

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College Kids Need an Estate Plan

College Kids Need an Estate Plan

When it comes to estate planning, we usually think of older adults. However, even college kids need an estate plan.

WDIO’s recent article entitled “Estate planning is for college students too” reminds us that there’s a number of documents you can put into place in the case of an emergency.

Power of Attorney. There are two types of POAs. The financial power of attorney allows a named agent to make financial decisions on behalf of the college student, in the event they are unable to do so. A medical power of attorney names a healthcare agent.

These can have HIPAA language written into them that authorizes their medical provider to release information about them. Remember, if your student travels away from home for college, you may need a POA for that state.

Will. A typical college student might not have a lot of money. However, they do have their own stuff, and someone needs to make the decision regarding what happens to that stuff. Ask the student to name the parents as the executor of his or her will.

FERPA Waiver. FERPA stands for the Family Educational Rights and Privacy Act. Without this waiver, a parent has no authority to call the college and request information about your student if they’re over 18. With a waiver, you can request a transcript and student loan information.

HIPAA Waiver. A HIPAA waiver allows an adult child’s health information to be disclosed. It’s usually for medical facilities, doctors, schools, or any other person where they are in possession of the health information of a person where that individual authorizes the release of the information to a designated person.

Even college kids need an estate plan and it does not have to be complicated. If you already have planning done for yourself, sit down with your estate planning attorney to discuss how you can begin the process for your college age student. If you would like to learn more about estate planning for young adults, please visit our previous posts. 

Reference: WDIO (Sep. 28, 2022) “Estate planning is for college students too”

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Key Documents Every College Kid Needs

Key Documents Every College Kid Needs

In the United States, as soon as a minor turns 18, they’re typically considered a legal adult. As a result, parents no longer have any authority to make decisions for their child, including financial and health care decisions. That is why there are key documents every college kid needs.

Yahoo’s recent article entitled “Don’t Let Your Child Leave for College Without Signing Three Critical Documents” asks what if your adult child becomes sick or is in an accident and ends up hospitalized?

Because of privacy laws, known as Health Insurance Portability and Accountability Act (HIPAA), you wouldn’t have any rights to get any information from the hospital regarding your child’s condition. Yes, we know you’re her mother. However, that’s the law!

You also wouldn’t have the ability to access his or her medical records or intercede on your child’s behalf regarding medical treatment and care.

If your child’s unable to communicate with doctors, you’d also have to ask a judge to appoint you as your child’s guardian before being able to be told of his or her condition and to make any healthcare decisions for them.

While this is hard when your child is still living at home, it’s a huge headache if your child is attending college away from home.

However, there’s a relatively easy fix to address this issue:

Ask an experienced estate planning attorney about drafting three legal documents for your child to sign:

  • A Durable Power of Attorney (DPOA) for Health Care. This document designates the parent as your child’s patient advocate.
  • A HIPAA Authorization gives you access to your child’s medical records and lets you to discuss his or her health condition with doctors.
  • A DPOA for Financial Matters, designates the parent as your child’s agent, so that you can manage your child’s financial affairs, including things like banking and bill paying, in case your child becomes sick or injured, or is unable to act for any reason.

If you are a parent, it is imperative that you consider these key documents that every college kid needs. If you would like to read more about estate planning for young adults, please visit our previous posts. 

Reference:  Yahoo (Aug. 2, 2022) “Don’t Let Your Child Leave for College Without Signing Three Critical Documents”

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Be certain You've got Legal Documents for your College Kid

Be certain You’ve got Legal Documents for your College Kid

There are few things more exciting as a parent than seeing your child come of age and embark on adulthood. That often means leaving home to start a career or enter college. It is at this stage that you need to be certain you’ve got legal documents in place for your college kid. The Press-Enterprise’s recent article entitled “Legal documents for young adults” describes some of the important legal and estate planning documents your “kid” (who’s now an adult) should have.

HIPAA Waiver. This form allows medical personnel to provide information to the parties you’ve named in the document. Without it, even mom would be prohibited from accessing her 19-year-old adult’s health information—even in an emergency. However, know that this form doesn’t authorize anyone to make decisions. For that, see Health Care Directives below.

Health Care Directive. Also known as a health care power of attorney, this authorizes someone else to make health care decisions for you and details the decisions you’d like made.

Durable Power of Attorney. Once your child turns 18, you’re no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big concern, if your adult child becomes incapacitated. A springing durable power of attorney is a document that becomes effective only upon the incapacity of the principal (the person signing the document). It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately.

A durable power of attorney, whether springing or immediate, states who can make decisions for you upon your incapacity and what powers the agent has. The designated agent will typically be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals, and in general, act on behalf of the incapacitated person.

They’ll always be your babies, but once your child turns 18, he or she is legally an adult.

Be certain that you’ve got the legal documents in place to be there for your college kid in case of an emergency.

Remember a spring break, when they’re home for summer after their 18th birthday, or a senior road trip are all opportunities when these documents may be needed. If you would like to learn more about estate planning for young adults, please visit our previous posts. 

Reference: The Press-Enterprise (April 2, 2022) “Legal documents for young adults”

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Estate Planning for Young Adults

Estate Planning for Young Adults

There are some basic estate planning needs for young adults once they reach 18. This 18th birthday milestone legally notes the transition from minors to official adults, bringing with it major changes in legal status, says NJ Family’s recent article entitled “What You Need to Know (Legally and Medically) On Your Teen’s 18th Birthday.”

Adults—even your 18-year-old— is entitled to privacy rights. This means that anyone not given explicit rights via a power of attorney and HIPAA (the Health Insurance Portability and Accountability Act) release, among other important documents, can be denied info and access—even parents. Here’s what every family should have:

Power of Attorney. A power of attorney (POA) gives an agent (such as you as the parent) the authority to act on behalf of a principal (your adult child) in specific matters stated in the POA.

You can also have a POA for medical decisions and one for finances.

HIPAA Release. When kids become legal adults, they have a right to complete health privacy under HIPAA. That means no one can see their information without permission, even you!

Ask your child to sign a HIPAA release form (which is often included along with the medical power of attorney), to let their health providers share relevant information.

Wills. A simple Will is a good idea. It may also be a good time for you to review your estate plan to see how circumstances changed.

The wisest and safest way to get a credit card for your adult child is to add your child to your account. That way you can monitor transactions. Students also get an immediate bump in their credit score, which is important for renting apartments. However, the main point is to teach them skills and how to be responsible with money.

Talk with an experienced estate planning attorney about drafting all of the necessary estate planning for your newly-minted young adult. If you would like to read more about estate planning for young adults, please visit our previous posts.

Reference: NJ Family (Oct. 6, 2021) “What You Need to Know (Legally and Medically) On Your Teen’s 18th Birthday”

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even college kids need estate planning

Even College Kids Need Estate Planning

Even college kids need estate planning. The topic of estate planning is frequently overlooked in the craze to get kids to college.

When your child leaves home, it’s important to understand that legally you may not hold the same rights in your relationship that you did for the first 18 years of your child’s life.

Wealth Advisor’s article entitled “Estate Planning Documents Every College Student Should Have in Place” says that it’s crucial to have these discussions as soon as possible with your college student about the plans they should put into place before going out on their own or heading to college. An experienced estate planning attorney can give counsel on the issues concerning your child’s physical health and financial well-being.

When your child turns 18, you’re no longer your child’s legal guardian. Therefore, issues pertaining to his or her health can’t be disclosed to you without your child’s consent. For instance, if your child is in an accident and becomes temporarily incapacitated, you couldn’t make any medical decisions or even give consent. As a result, you’d likely be denied access to his or her medical information. Ask your child to complete a HIPAA release. This is a medical form that names the people allowed to get information about an individual’s medical status, when care is needed. If you’re not named on their HIPAA release, it’s a major challenge to obtain any medical updates about your adult child, including information like whether they have been admitted to a hospital.

In addition, your child also needs to determine the individual who will manage their healthcare decisions, if they’re unable to do so on their own. This is done by designating a healthcare proxy or agent. Without this document, the decision about who makes choices regarding your child’s medical matters may be uncertain.

Your child should ensure his or her financial matters are addressed if he or she can’t see to them, either due to mental incapacity or physical limitations, such as studying abroad. Ask that you or another trusted relative or friend be named agent under your child’s financial power of attorney, so that you can help with managing things like financial aid, banking and tax matters. While they may feel they are invincible, even college kids need estate planning. If you would like to learn more about planning for young adults, please visit our previous posts. 

Reference: Wealth Advisor (Sep. 24, 2021) “Estate Planning Documents Every College Student Should Have in Place”

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what should a health care directive include

What should a Health Care Directive include?

Healthy adults often make the mistake of thinking they don’t need a health care directive. However, the pandemic has made clear everyone needs this estate planning document, at any time of life, according to a recent article “Health care directive beneficial for anyone” from The Times-Tribune. So what should a health care directive include?

Anytime a person becomes severely incapacitated, even if just for a short time, and any time a young person becomes a legal adult, a health care directive is needed. In other words, everyone over the age of 18 needs to have a health care directive.

Several health care directives are prepared by an estate planning attorney as part of a comprehensive estate plan. Health care directives should include the following:

A Living Will or Advance Directive is used to express wishes for medical treatments, if you are not able to express them yourself.

A Power of Attorney for Health Care (also known as a Durable POA for Health Care or a Health Care Proxy) lets you name a trusted person who will make health care decisions on your behalf,sss if you cannot make the decisions or communicate your wishes.

A HIPAA Privacy Authorization makes it possible for health care providers to share medical information with a person of your choice. Otherwise, the health care providers are not permitted to discuss your medical history, medical status, diagnostic reports, lab results, etc., with family members.

Short term incapacity can result from illness or recovery from surgery or intense medical treatments. Having these documents in place permits a person you trust to have important conversations with your health care providers and to make decisions on your behalf.

Physicians will be permitted to discuss medical care with a named agent, who, in turn, will be able to discuss care or status with family members.

This documentation will also allow an authorized person to help you with insurance companies, billing departments at hospitals, pharmacies and to schedule medical appointments on your behalf.

If you are not married, this is especially important. Even a partner of many years has no legal right to act on your behalf.

For parents of young adults, having these documents in place will allow them to stay involved in an adult child’s healthcare. Make sure your health care directives include all the documents you need. It’s not a scenario that any parent wants to contemplate, but having these documents prepared in advance can save a great deal of stress and anguish, if and when they are needed.

If you are interested in learning more about health care directives, and other important estate planning documents, please visit our previous posts. 

Reference: The Times-Tribune (Aug. 15, 2021) “Health care directive beneficial for anyone”

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steps to take when diagnosed with Alzheimer's?

Steps to Take when Diagnosed with Alzheimer’s

A diagnosis of Alzheimer’s or any serious progressive disease takes some time to absorb. What are the steps to take when diagnosed with Alzheimer’s? During the days and weeks after the diagnosis, it is important to take quick steps to protect the person’s health as well as their legal and financial lives, advises the recent article “What to do after an Alzheimer’s disease diagnosis?” from The Indiana Lawyer.

Here are the legal steps that need to be taken when diagnosed with Alzheimer’s, before the person is too incapacitated to legally conduct their own affairs:

General Durable Power of Attorney—A person needs to be appointed to perform legal and financial duties when the time comes. This can be a family member, trusted friend or a professional.

Health Care Power of Attorney—A person must be entrusted with making health care decisions, when the patient is no longer able to communicate their wishes.

HIPAA Authorization—Without this document, medical care providers will not be able to discuss the person’s illness or share reports and test results. An authorized person will be able to speak with doctors, pick up prescriptions and obtain medical reports. It is not a decision-making authorization, however.

Living Will—The living will explains wishes for end-of-life medical care, including whether to prolong life using artificial means.

Funeral Plans—Some states permit the creation of a legally enforceable document stating wishes for funerals, burials or cremation and memorial services. If a legal document is not permitted, then it is a kindness to survivors to state wishes, and be as specific as possible, to alleviate the family’s stress about what their loved one would have wanted.

Medicaid Planning—Care for Alzheimer’s and other dementias becomes extremely costly in the late stages. A meeting with an elder law attorney is important to see if the family’s assets can be protected, while obtaining benefits to pay for long-term and dementia care.

After the patient dies, there may be a claim against it from the state to recover Medicaid costs. By law, states must recover assets for long-term care and related drug and hospital benefits. All assets in the recipient’s probate estate are subject to recovery, except if surviving spouse, minor children, blind or disabled child is living or where recovery would cause hardship.

These are just a few steps to take when diagnosed with Alzheimer’s. With good planning and the help of an experienced elder law attorney, the family may be able to mitigate claims by the government against the estate.

If you would like to learn more about Alzheimer’s disease, and other forms of dementia, please visit our previous posts.

Reference: The Indiana Lawyer (Jan. 6, 2020) “What to do after an Alzheimer’s disease diagnosis?”

 

Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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