Category: HIPAA

Essential Estate Planning Documents every Caregiver Needs

Essential Estate Planning Documents every Caregiver Needs

Being a caregiver for a loved one can be one of the most emotionally challenging things you can do. There are so many aspects of your loved ones life that you are suddenly responsible for managing. So many important discussions about estate planning and writing a will are emotionally challenging as they ask those involved to come face-to-face with their mortality. But these are important discussions, says a recent article, “Elder Law Guys: All the documents to have in place when you’re an adult caregiver,” from Pittsburgh Post-Gazette. The sooner these conversations take place, the better. There are some essential estate planning documents every caregiver needs to have available.

Here are the documents needed:

General Durable Power of Attorney. The financial POA is the most essential estate planning document. An agent is named to stand in for the parent or other person and make all financial and legal decisions. Name not just one but two successor agents to serve if the primary agent cannot or will not serve when needed. If no POA or agent can serve, the family will need to petition the court to have a judge name a guardian to manage the person’s financial affairs. There’s no guarantee that the court will name a family member. POA law varies by state, so speak with an estate planning attorney to ensure the POA permits the specific actions you want the agent to be able to take.

Durable Healthcare Power of Attorney and a Living Will. In some estate planning practices, these two documents are combined, while in others, they are separate. For the Healthcare POA, an agent is named to make health care decisions for the person. It’s advised to name two successor agents in case the primary person cannot or does not wish to serve in this capacity.

A Living Will contains the person’s wishes regarding receiving life-sustaining treatment in the event they can’t make their own decisions and the treating physician has determined the patient is either suffering from an irreversible coma, is in a persistent vegetative state, or an end-stage medical condition not survivable even with treatment.

Last Will and Testament and Trusts. The last will and trusts both dictate how property will pass, but the will directs how property is passed upon death. A trust contains provisions to manage assets during a person’s lifetime. Assets owned by a trust don’t go through probate, so they transfer directly to beneficiaries, and their value and the identity of beneficiaries remain private.

Suppose there are family members who are disabled. In that case, the estate plan should include a Supplemental Needs Trust to hold any inheritance from a disabled beneficiary who receives needs-based government benefits. Otherwise, the disabled recipient will become ineligible for government benefits. Depending on the circumstances, parents may want assets to be held in trust for other beneficiaries until they can manage their inheritances wisely.

Asset Protection Trust. An irrevocable Asset Protection Trust holds assets to shelter them from the cost of long-term care and can reduce or eliminate estate taxes for beneficiaries. An estate planning attorney will know which type of Asset Protection Trust will be most effective for your situation.

Beneficiary Designation Forms. All accounts or assets with beneficiary designations should be reviewed to be sure the named beneficiary is correct.

These essential estate planning documents should be stored in a known location so the may be available for a caregiver to access, if they need. Documents must be reviewed every three to five years to ensure they align with the parent’s wishes. Estate and tax laws change, relationships change, and people move and pass on, so it’s important to keep these documents updated. If you would like to learn more about the role of a caregiver, please visit our previous posts. 

Reference: Pittsburgh Post-Gazette (July 8, 2023) “Elder Law Guys: All the documents to have in place when you’re an adult caregiver”

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How does HIPAA Authorization Work?

How does HIPAA Authorization Work?

Many people have heard of HIPAA rules, often in terms related to medical care, but do not understand it. So how does a HIPAA authorization work? The HIPAA Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights concerning that information. 45 CFR §164.508 states the uses and disclosures of PHI that require authorization from a patient/plan member before information can be shared or used.

It’s important to know that some organizations are considered “partial” or “hybrid” entities. These are usually organizations whose primary function isn’t healthcare or health insurance but who have access to health information that should be protected. An educational institution that provides health services to the public is an example of a partial or hybrid entity.

HIPAA Journal’s recent article entitled “What is HIPAA Authorization?” explains that in some situations, informal consent rather than formal authorization is enough to satisfy the requirement of the HIPAA Privacy Rule. These circumstances are called “Uses and Disclosures with an Opportunity to Agree or Object” and include inclusion in facility directories and notifications to friends and family (of admission into the hospital).

If an individual cannot give their authorization, covered entities must wait until the patient or their legal representative can give their authorization. When only informal consent is required, covered entities can use their professional judgment to determine whether the use or disclosure of PHI is in the patient´s best interests.

Note that the requirements for HIPAA authorizations aren’t the same throughout the country. The HIPAA Privacy Rule is a “federal floor” for permissible uses and disclosures. However, some state laws may pre-empt HIPAA, if they have more stringent regulations.

The clause “covered entities cannot condition treatment, payment, enrollment, or eligibility for benefits” means that a covered entity can’t withhold treatment, payment, enrollment, or eligibility for benefits because a patient or plan member refuses to sign an authorization giving the covered entity additional uses for their PHI, which stands for Protected Health Information (PHI). A patient or plan member shouldn’t be put under any duress to approve the uses and disclosures of PHI, in addition to those permitted by the Privacy Rule.

The law stipulates that there has to be written authorization for every use or disclosure of PHI not required or permitted by the Privacy Rule. The retraction of HIPAA authorization also has to be written. However, HIPAA consent can be verbal, but only when consent – rather than authorization – is an option. Understanding how a HIPAA authorization does and does not work can be the difference between staying informed and being excluded. If you are interested in learning more about medical directives like HIPAA, please visit our previous posts. 

Reference: HIPAA Journal (October 9, 2021) “What is HIPAA Authorization?”

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Legal Documents Every Senior Needs

Legal Documents Every Senior Needs

There are legal documents every senior needs. Legal documents pertaining to health care, end-of-life treatments and allowing others to access medical records are vital to protecting adults at any age. However, they are especially important for seniors, says a recent article from The News-Enterprise, “All seniors need legal documents for medical issues.”

These documents include a living will, health care power of attorney and HIPAA authorization. In addition, they give you the ability to name the individuals you want access to secure medical information and who will be able to make decisions about your health care during incapacity.

The health care power of attorney is the broadest and most important medical estate planning document. Depending upon where you live, it may be known as medical power of attorney, healthcare proxy, or healthcare surrogate.

Here’s where an estate planning attorney is needed: like many estate planning documents, the health care power of attorney can be broad, encompassing both a living will, and a HIPAA authorization within one single document, or it can be extremely limited. By having a document created for you, rather than using a boilerplate form, you can ensure your exact wishes are followed.

The health care power of attorney generally makes specific determinations. The document needs to name one person or agent and a backup agent to act on your behalf. Many people think they can change their agent if the agent becomes incapacitated or unavailable. Still, all too often, they need to remember to have their document updated, and then, when they need to have an agent act on their behalf, no one can do so.

Without an appointed agent, court intervention becomes necessary, which is time-consuming and costly.

The health care power of attorney should specify when the agent may act on behalf of the person and address both access to information and decision-making. The ability to immediately make decisions is critical when the individual is at an advanced age or has urgent medical needs. In addition, other provisions are included to ensure the agent has the full ability to act.

A living will, sometimes called an advance medical directive, may be a separate document or contained within the health care power of attorney. It includes instructions for end-of-life decisions. These may be as detailed as outlining when artificial nutrition and hydration may be used or as simple as naming an agent with the right to remove the person from life support. If you have strong feelings about using life-prolonging devices, your wishes can be legally enforceable through a living will.

Lastly, a HIPAA authorization permits another person to have access to review medical records.

These are the basic legal documents that every senior needs built into their estate planning. These health care documents should be created with the help of an experienced estate planning attorney to ensure the person carrying out your wishes is the person whose judgment you trust and to clarify your wishes. Preparing for these tough decisions in advance is hard. However, this is a gift to those you love, who will otherwise be left hoping they did what you would have wanted. If you would like to learn more about health care planning, please visit our previous posts.

Reference: The News-Enterprise (May 27, 2023) “All seniors need legal documents for medical issues”

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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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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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