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Category: HIPPA

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?”

 

charitable contribution deductions from an estate

What are the Steps to Take when Dementia Begins

Covid-19 has made travelling more difficult, so holiday visits this year may not be the same triggering event they were in the past. However, even an online holiday visit can reveal a great deal of change, reports a recent article “Elder Care: When the children don’t notice” from The Sentinel. What are the steps to take when dementia begins?

An elderly spouse caring for another elderly spouse may not notice that their loved one’s needs have increased. Caregiving may have started as the spouse needing a reminder to take a shower on a regular basis. As dementia begins, the spouse may not be able to shower by themselves.

This quickly becomes exhausting and unsafe. If one spouse suddenly does not recognize the other and perceives their spouse as an intruder, a dangerous situation may occur, repeatedly. It’s time to discuss this with the children, if they are not available to notice this decline in person.

People are often reluctant to tell out-of-town children about this problem because they don’t want the added stress of having the children come to the rescue and making decisions that may be overwhelming. The children may also think they can come out for a visit and fix everything in the space of a few days. It’s not an easy situation for anyone.

A first step to take, especially when early-stage dementia begins, is to get an estate plan in place immediately, while the person still has the capacity to sign legal documents. Anyone who is old enough for Medicare (and anyone else, for that matter) needs to have an updated last will and testament, durable financial power of attorney for financial matters and a health care power of attorney, including a living will.

The financial power of attorney document will be the most practical because the family will be able to access financial accounts and make decisions without having to petition the court to appoint a guardian. A professional guardian might be appointed, which is extremely expensive and there have been situations where the professional guardian makes decisions the family does not want. A family member who can act under the power of attorney may be a much better solution for all concerned.

Speak with your estate planning attorney to be sure the POA permits wealth preservation. If it contains the phrase “limited gifting,” you want to discuss this and likely change it. You should also be sure that there is a secondary and even a third backup agent, in case there are any issues with the people named as POA.

Spouses typically have wills that leave everything to their spouse, and then equally among their children, if the spouse dies first. However, what if your spouse is in a nursing home when you die? The cost of nursing home care can quickly exhaust all funds. If any family member is receiving government benefits and then inherits directly, they could lose important government benefits. These are all matters to discuss with your estate planning attorney.

Have a conversation with your children about your healthcare advance directive. It’s not an easy conversation, but when the children know what their parents want concerning end-of-life care decisions, it relieves an enormous burden for all. Get specific—do you want a feeding tube to keep you alive? What about if the only thing keeping them alive is a heart-lung machine? Better to have these conversations now, than in the hospital when emotions are running high.

Another important step to take when dementia begins is the HIPAA release. This permits healthcare providers to discuss and share information about your loved one’s medical care. Without it, even close family members are not legally permitted to be part of the conversation about health care, lab test results, etc.

If you would like to learn more about dementia and other elder care issues, please visit our previous posts. 

Reference: The Sentinel (Dec. 11, 2020) “Elder Care: When the children don’t notice”

 

charitable contribution deductions from an estate

What Happens when Mom Refuses to Create an Estate Plan?

This is a tough scenario. It happens more often than you’d think. Someone owns a home, investment accounts and an inheritance, but doesn’t want to have an estate plan. They know they need to do something, but keep putting it off—until they die, and the family is left with an expensive and stressful mess. A recent article titled “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late” from Kiplinger, explains how to help make things right.

Most people put off seeing an estate planning attorney, because they are afraid of death. They may also be overwhelmed by the thought of how much work is involved. They are also worried about what it all might cost. owever, if there is no estate plan, the costs will be far higher for the family.

How do you get the person to understand that they need to move forward?

Talk with the financial professionals the person already uses and trusts, like a CPA or financial advisor. Ask them for a referral to an estate planning attorney they think would be a good fit with the person who doesn’t have an estate plan. It may be easier to hear this message from a CPA, than from an adult child.

Work with that professional to promote the person, usually an older family member, to get comfortable with the idea to talk about their wishes and values with the estate planning attorney. Offer to attend the meeting, or to facilitate the video conference, to make the person feel more comfortable.

An experienced estate planning attorney will have worked with reluctant people before. They’ll know how to put the older person at ease and explore their concerns. When the conversation is pleasant and productive, the person may understand that the process will not be as challenging and that there will be a lot of help along the way.

If there is no trusted team of professionals, then offer to be a part of any conversations with the estate planning attorney to make the introductory discussion easier. Share your own experience in estate planning, and tread lightly.

Trying to force a person to engage in estate planning with a heavy hand, almost always ends up in a stubborn refusal. A gentle approach will always be more successful. Explain how part of the estate plan includes planning for medical decisions while the person is living and is not just about distributing their assets. You should be firm, consistent and kind.

Explaining what their family members will need to go through if there is no will, may or may not have an impact. Some people don’t care, and may simply shrug and say, “It’ll be their problem, not mine.” Consider what or who matters to the person. What if they could leave assets for a favorite grandchild to go to college? That might be more motivating.

One other thing to consider: if the person has an estate plan and it is out of date, that may be just as bad as not having an estate plan at all, especially when the person has been divorced and remarried. Just as many people refuse to have an estate plan, many people fail to update important documents, when they remarry. More than a few spouses come to estate planning attorney’s offices, when a loved one’s life insurance policy is going to their prior spouse. It’s too late to make any changes. A health care directive could also name a former brother-in-law to make important medical decisions. During a time of great duress, it is a bad time to learn that the formerly close in-law, who is now a sworn enemy, is the only one who can speak with doctors. Don’t procrastinate, if any of these issues are present.

Reference: Kiplinger (May 11, 2020) “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late”

 

charitable contribution deductions from an estate

Rules for the HIPAA Waiver Relaxed?

The United States Department of Health and Human Services has announced that it won’t enforce penalties for violations of certain provisions of the HIPAA privacy rule against healthcare providers or their business associates for good-faith disclosures of protected health information (PHI) for public health purposes during the COVID-19 emergency.

The HHS Office for Civil Rights said that it was exercising its “enforcement discrimination” in announcing its change in policy during the coronavirus pandemic, a declared emergency period, reports Modern Healthcare in its article “HHS eases HIPAA enforcement on data releases during COVID-19.”

A HIPAA waiver of authorization is a legal document that permits an individual’s protected health information (PHI) to be used or disclosed to a third party. This waiver is part of a series of patient-privacy measures set forth in the Health Insurance Portability and Accountability Act (HIPAA) of 1996.

PHI covered under HIPAA is information that can be connected to a specific individual and is held by a covered entity, like a healthcare provider. HIPAA has set out 18 specific identifiers that create PHI, when linked to health information.

The notification was issued to support federal and state agencies, including the CMS and the Centers for Disease Control and Prevention, that require access to COVID-19 related data, including protected health information.

“The CDC, CMS, and state and local health departments need quick access to COVID-19 related health data to fight this pandemic,” OCR director Roger Severino said in a statement. “Granting HIPAA business associates greater freedom to cooperate and exchange information with public health and oversight agencies, can help flatten the curve and potentially save lives.”

HIPAA’s privacy rule only permits business associates of HIPAA-covered entities to disclose protected health information for certain purposes, under explicit terms of a written agreement.

The moratorium enforcement doesn’t extend to other requirements or prohibitions under the privacy rule, nor to any obligations under the HIPAA security and breach notification rules, OCR said.

Reference: Modern Healthcare (April 2, 2020) “HHS eases HIPAA enforcement on data releases during COVID-19”

 

charitable contribution deductions from an estate

You Can Complete Your Estate Plan During the Coronavirus Quarantine

The coronavirus lockdown is happening in many states, following the lead of California, Illinois, Florida and New York. Kiplinger’s recent article entitled “How to Get Your Estate Plan Done While Under Coronavirus Quarantine” says that these isolation orders create unique issues with your ability to effectively establish or modify your estate plan.

The core documents for an estate plan are intended to oversee the management and distribution of your assets, after you pass or in the event you are incapacitated. Each document has requirements that must be met to be legally effective. Let’s look at some of these documents. Note that there’s proposed federal legislation that would permit remote online notarization, and Illinois and New York have passed orders to allow notarization utilizing audio visual technology.

Will. Every state has its own legal requirements for a will to be valid, and most require disinterested witnesses. Some states, like California, permit a will, otherwise requiring the signature of witnesses, to be valid with clear and convincing evidence of your intent for the will to be valid. An affidavit indicating that the will was signed as a result of the emergency conditions caused by the COVID-19 virus should satisfy this requirement.

Power of Attorney. This document designates an individual to make financial decisions regarding your assets and financial responsibilities, if you’re unable to do so. This can include issues regarding retirement benefits, life and medical insurance and the ability to continue payments to persons financially dependent on you. The durable general power of attorney is typically notarized.

Advance Health Care Directive. This document states whether you want your life extended by life support systems and if you want extraordinary measures to be taken. It may state that you wish to have a DNR (Do Not resuscitate) in place.

HIPAA Authorization. Some states have their own medical privacy laws with separate requirements, and most powers of attorney provide that the designated persons can act, if you’re unable to do so. Financial institutions typically require confirming letters from your doctor that you’re unable to act on your own behalf. To be certain that this agent can act on your behalf if needed, they should be given written access to see your medical information.

With the pandemic, these requirements can be fluid and may change quickly. Be sure to work with an experienced estate planning attorney.

Reference: Kiplinger (March 30, 2020) “How to Get Your Estate Plan Done While Under Coronavirus Quarantine”