Posts Tagged ‘health care power of attorney’

New Thanksgiving Tradition to Consider: The Conversation

NOVEMBER 24, 2014 VOLUME 21 NUMBER 43

You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor  and of course your lawyer kept a copy. Did you think you were done? Because you’re not.

Now it’s time to take care of the most important part of this process. Signing advance health care directives is important (you have gotten that part done, right? What??!! You haven’t? Get to it!). But perhaps more important than the documents is The Conversation.

You need to discuss your end-of-life health care wishes with family members. You need to include the person named as your health care agent. You also need to include the family members not chosen to make the decision. You do not want anyone arguing that “mom can’t possibly have meant to sign that” or “someone talked dad into signing that power of attorney when he didn’t really know what it meant.”

Do you want your wishes carried out? The surest way to accomplish that is to actually tell everyone in your family what those wishes are. Tell them where the documents are, and share copies. Answer their questions. Make sure they know that you know what you’ve signed, and what you want.

That’s the premise behind The Conversation Project, a non-profit organization founded by columnist Ellen Goodman. According to the Project, 60% of poll respondents say that it’s important to make sure they don’t burden their families with tough decisions at the end of life. Still, 56% say they have not talked with their families about their wishes. In our experience, we think that latter figure is inflated; people tell us they have talked with family members, but on closer questioning they usually have not.

When do you have The Conversation? We’re promoting (only half tongue-in-cheek) Thanksgiving Day as the perfect opportunity. The whole family has gathered together, the turkey is taking longer to cook than was planned — it all works to create the perfect opportunity. OK — we know you’re not likely to bring it up this Thanksgiving, but what about the rest of the family weekend?

Need help getting started? The Conversation Project has a conversation “starter kit” to do just that. It gives you some ideas about what to discuss and how to bring it up. Get copies of your advance directives together for The Conversation and just get going.

We hear you say: “my family knows what I want.” No, actually, they don’t. And some may “know” you want something different from what other family members know. How would they know if you don’t tell them? Mind reading? Osmosis? Please don’t assume they do just because they know you.

So this Thanksgiving, try The Conversation (not the Francis Ford Coppola movie starring Gene Hackman, though we also like that one). Not ready to do it that soon? OK, but schedule it, and mention it to your family, and get ready for it. Don’t just shelve The Conversation, thinking you’ll get back to it later.

In the meantime, please, have a healthy, productive and happy Thanksgiving holiday.

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Which is Better: Guardianship or Power of Attorney?

SEPTEMBER 8, 2014 VOLUME 21 NUMBER 32

Here’s a question we get asked a lot: “which is better for me to get for my mother — a guardianship or a power of attorney?” Sometimes the questioner is checking on the difference between a conservatorship and a power of attorney or (less commonly) a guardianship and a conservatorship. But the question almost always has the word “better” embedded somewhere.

The question itself is misleading, and our answer almost never satisfies. The problem is simple: if your aging parent needs someone to make decisions (medical, placement, financial or other decisions) for him or her, you almost never have a choice about whether to pursue getting a signed document (like a power of attorney) or a court order (like a guardianship or conservatorship). Why not? Because if your parent is able to sign a power of attorney, he or she is probably not a candidate for a guardianship or conservatorship. Conversely, if you could get a guardianship or conservatorship order, your parent probably can’t sign a power of attorney.

A word about language, and the peculiarities of Arizona law: in Arizona (and in some but by no means all other states) a “guardianship” is a court proceeding in which one person is given decision-making authority over another person’s medical care, placement and personal decisions. A “conservatorship” is a similar court proceeding, but with the end result that one person is given authority over another person’s finances. And Arizona does not have a procedure (as some other states do) for a “voluntary” conservatorship, which would allow the court to appoint a conservator even though the person in question is fully competent but willing to allow appointment of a conservator.

In order to have the court appoint a guardian or a conservator in Arizona, you would need to show that your parent (or other family member, or friend for whom you are ready and appropriate to act) is unable to make and communicate responsible decisions. That, actually, is the magic language for a guardianship; conservatorship requires you to be able to show that your parent, family member or friend is unable to provide proper management of his or her assets.

A power of attorney, on the other hand, does not involve courts at all. Signing a power of attorney is a voluntary act undertaken by a competent individual who understands the purpose and effect of his or her signature. As you can see, that is likely not possible for most people for whom a guardian and/or conservator could be appointed.

So the question is usually not which approach would be “better” — it is which approach is possible. If the individual is not able to sign a power of attorney, we usually add our own question to the mix: is getting a guardian and/or conservator appointed the best way to handle the problems that have arisen — is it even necessary to pursue guardianship or conservatorship?

Now pose the question differently. You are a fully competent adult, thinking about your future. You are worried about having someone available and able to take over your personal (health care) and financial decisions if you should be come unable to do so yourself. Is it better for you to sign a power of attorney, or should you simply rely on the legal system to establish a guardianship and/or conservatorship when the time comes for you?

The answer to THAT question is easy, at least in the vast majority of cases. The cost, difficulty, and invasion of your personal dignity involved in a guardianship/conservatorship almost always makes it better for you to sign a power of attorney now, while you can make your own choice. Who should NOT sign a power of attorney? Really only people who have no one trustworthy enough to take responsibility (and there are people in that unfortunate situation — to many people, in our experience) should make a conscious decision to NOT sign a power of attorney.

Notice that we have not distinguished here between (a) health care powers of attorney and (b) financial (or “general”) powers of attorney. That’s because the same values and decisions apply to both. But, in Arizona, at least, there is one important difference between the two levels of urgency: your next of kin (and some others, if you do not have close family members) might have the authority to make health care and even placement decisions for you even though you have not signed a power of attorney (and no court proceedings have been initiated). Family members — even spouses — do NOT have any authority to handle your finances without a power of attorney, however.

Which is better? If you are in a position to plan for yourself, it is almost always a good idea to choose an agent (you can choose different financial and health care agents, if you’d like) and sign powers of attorney. Do it now — don’t wait until you actually “need” the documents, because that will almost certainly be too late. Don’t rely on your belief that everyone knows what you want — that carries no weight in the legal system, unless it has been reduced to writing.

If you’re facing the problem from a child’s perspective, we’re sorry to say that it’s almost never relevant to tell you which approach is “better.” Usually it is a question of which is available. We can help, but it is likely to be more expensive and difficult if your parent (or spouse, or even child) didn’t get around to signing a power of attorney.

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How to Make Health Care Decisions for Someone Else

JULY 28, 2014 VOLUME 21 NUMBER 27

Maybe you’ve been named guardian (of the person) for a family member, colleague, or friend. Maybe you’ve been listed in a health care power of attorney. Maybe you’re a family member with authority to make health care decisions (Arizona, like a number of other states, permits family members or others to make most health care decisions in at least some cases). How you got there is not the point, at least not for today. Today’s question: how do you go about making decisions for someone else when you have been given the power — and responsibility — to do so?

For centuries the American common law (and its English predecessor) focused on the “best interest” of someone who was no longer able to make their own decisions. It was not until relatively recently that the concept of “substituted judgment” began to seep into legal discussions. Today the latter notion drives health care decision-making in Arizona. That is also true in most (perhaps all) of the other states in the U.S. It may also be true in other countries, but that is beyond our scope today. In Arizona, at least, it is clear: “substituted judgment” is the legal standard for health care decisions.

But what does that mean? One early description suggested that a person making decisions for someone else should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the decision-maker should try to substitute the patient’s decision for his or her own, not the other way around. In other words, the guardian/agent/surrogate should first try to figure out what the patient/principal would want in the circumstances.

Let’s simplify some of the language, just to keep things from bogging down in legalisms. Let’s use “principal” for the person signing a power of attorney, or subject to a guardianship, or (however they got there) presently incapable of making decisions. The person making the decision, signing the hospital’s forms, choosing a facility, or whatever — we’ll call him or her the “surrogate”.

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list (probably not comprehensive — look at the comments to see if anyone has suggested other good ideas) of things you might look to:

  • Did the principal sign any documents? A living will, for instance, might give some insight into the principal’s wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances.
  • Did you have any conversations with your principal? Maybe you talked about other patients in the news, and how your principal felt about their stories. Be careful here — we remember one client who adamantly said she didn’t want to “go through what Terri Schiavo did.” It wasn’t until we followed up with the client that we figured out that she meant that she thought it was terrible that the legal system allowed Ms. Schiavo to die. We had assumed that she meant she wouldn’t have wanted to be kept alive, but that was the exact opposite of her meaning.
  • Did anyone else have conversations with your principal? Ask family, friends, co-workers and others who might have discussed health care issues with the principal while they were still capable of forming a decision.
  • Ask your principal. Is he or she able to talk at all? Then ask for direction. That doesn’t mean you have to follow whatever a now-demented patient says he or she wants — the principal might simply respond affirmatively to almost every question, making the answer depend on how you ask. But just because you’ve been given responsibility for the decision it does not follow that your principal’s opinion is no longer relevant.
  • Consider your principal’s life history. Was he or she particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision?
  • Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure).

Arizona law is clear on what happens next. If you can’t figure out what your principal would want, then you move from applying “substituted judgment” principles to determining the “best interests” of your principal. But that doesn’t necessarily mean that you have to approve treatment.

  • Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery?
  • Strive for consensus. You are supposed to be figuring out what your principal would want, but the input of family, friends and the medical community is worth considering in an attempt to avoid infighting, undercutting and acrimony. Your principal’s care might not be best-served by having a difficult situation made more tense.
  • As a last resort, consider submitting difficult choices to the courts for resolution. That gives everyone a chance to air their positions in a formal setting, and focuses the questions on the principal’s wishes — and care. But it is time-consuming and expensive, and should not be invoked unless there is real difficulty in making the correct decision.

It is a challenge to make health care decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Another day we’ll write about how you can make that job easier when you’re the principal rather than the surrogate. In the meantime, take the surrogate’s job seriously, and do your best to substitute your principal’s decisions for those you might make for yourself.

 

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Is That Your Advance Directive in Your Pocket?

JULY 14, 2014 VOLUME 21 NUMBER 25

Last week I underwent a small outpatient surgical procedure (I’m fine — thanks for asking). I actually looked forward to the “do you have an advance (medical) directive?” question on admission.

A couple years ago I had another outpatient procedure, and was surprised when the intake clerk asked about my advance directive. “Do I have one?” I asked, rhetorically and with amazement. “Of course I do. I am an elder law attorney practicing in Tucson for nearly four decades. I was involved in the leading Arizona case on surrogate decision-making. I sat on the legislative committee that came up with our current advance directive law, back in the 1990s. Not only do I have an advance directive, I have a darn good one!” “Great,” said the intake clerk — “where is it?” “In the safe at my office,” I admitted, sheepishly. Oops.

Since then the Arizona legislature has approved an online registry system for advance directives. If you are an Arizona resident, you can send a copy of your health care power of attorney and/or living will to the Arizona Secretary of State’s office, along with a form you can download, to get your directive(s) registered. (Actually, there’s nothing on the site that says you have to be an Arizona resident — but we simply don’t know how well it would work if you tried it from out of state.)

Once you fill out the form and send in your copy, you get a registration card back in the mail. It takes a couple weeks. My wife and I did this a few months ago, and so I was looking forward to using the form when I had to go in for last week’s procedure.

“Do you have an advance directive?” asked the intake clerk. “You bet,” I proudly replied, “and here’s how you can get a copy of it.” I handed her my card. “Huh.” she said (she was very expressive). I asked her if she had ever seen a card like that before, and she said that yes, she had started seeing them lately. Good news all around.

How does it work? Your registration card has a website address, a login and a password. Your doctor, hospital, outpatient surgical center, or anyone else with the login and password can download a PDF copy of your advance directive. And you can update the directive any time you sign a newer, better, more current one.

Here’s what mine looks like:

AdvanceDirective

There’s a really nice change in recent years, and one disappointment. We can help you with the latter.

The good news: the current Arizona Secretary of State thinks your name is more important than his. His predecessor had her name splashed across the form and your identification card in type larger than the part that identified you — it was confusing and cheesy. Examining my current card, I can’t even find the Secretary of State’s name, and that despite the fact that the fellow is running for office. Good to see.

The bad news: the card you get back is a flimsy paper wallet-sized card. It isn’t laminated, isn’t durable, is easy to lose. Our offer: if we wrote your advance health care directive, we have a laminating machine that we’ll be happy to use to laminate your card. No cost. Just like the program itself.

Now you Arizona residents don’t have to keep a copy of your advance health care directives with you when  you travel. You don’t need an extra copy stuffed into your car’s glove box. And, most importantly of all, you don’t have to sign a new document when you get to the intake clerk and she asks you where you keep your advance directive. It’s online, and in your wallet/purse.

Want more information? Check out the Secretary of State’s website or, within reason, ask us. If you are a client, we will do whatever it takes to get your card into your wallet. If you’re not a client, we’re still pretty nice, and we’ll probably help you.

You say you don’t have an advance directive? Shame. Get on that right away, please. It really is important.

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Do You Need New Documents When You Travel Outside Arizona?

APRIL 21, 2014 VOLUME 21 NUMBER 15

It is late April, and that means Spring is in full bloom in Tucson. Many of our winter visitors (we call them “snowbirds” but not mockingly or disparagingly — at least most of the time) will be returning to Illinois, Missouri, New York, Wisconsin, or other, cooler climes. For that matter, many of our long-time residents and even natives will soon decamp to seashore or mountain, waiting for the heat to ease up.

This annual migration gives us a chance to talk about something we get asked a lot. Surely you need to have signed a health care power of attorney and living will. But do you need to have signed one in each state where you live part time? For that matter, should you sign a state-specific form for every state you visit more than fleetingly? And what about foreign countries — will your Arizona advance directive be valid in Canada, or Mexico, or Europe?

Generally speaking, there is less state-to-state law variation than you might suppose. Your Missouri will is going to be fine in Arizona (though if you’ve moved here from Missouri maybe your circumstances have changed — let us review and update your will. But that’s a different issue.) Your California living trust probably needs very little change for your new Arizona residence. But one area where there is a lot of variation is in advance health care directives.

What’s different? Terminology, for one thing. In Michigan they talk about health care “patient advocates,” and in New York they favor “health care proxies”. In both states they’ll probably figure out what you mean by “health care agent” or “health care power of attorney,” but you’d rather not make the hospital or doctor call the legal staff for an opinion. You’d rather just get good care, and quickly.

Another difference: some states permit broad powers in advance directives, and other states tend to be restrictive. Arizona is in the former camp. As many as half of the states would limit the applicability of your health care power of attorney to circumstances in which you are in a coma or persistent vegetative state; Arizona does not have that limitation, and so your Arizona form is unlikely to include that language. Furthermore, you probably wouldn’t want that restriction in your Arizona document while you’re here — why include a restriction that is not required and might cast doubt on the applicability of your advance directive, after all?

For many of our clients, the choice of agent is partly controlled by who is local and convenient. If you spend your winters near your daughter in Arizona, it might make sense to name her as your health care agent. If you return to Illinois, where your son lives, for the summer, you might want to name him as your agent while there.

There is a growing movement across the country — but not in Arizona — for something called “POLST” (some states use similar-but-different acronyms). That stands for “Physician’s Orders on Life-Sustaining Treatment,” and it is a very interesting and useful form by which you can have a “Do Not Resuscitate” (DNR) order in place before you go to the hospital or nursing home. Arizona has something similar, which is usually referred to as the “orange form” — but Arizona’s form will not work in any other state and no other state’s POLST form will work in Arizona. If you are concerned about resuscitation, you need to have appropriate plans in place in other states where you live part time or visit extensively.

So does all that mean you should have a new health care power of attorney drawn up as you drive across the border into New Mexico, Colorado and each state you go through? Not necessarily.

There’s at least one problem with having multiple forms signed. Under Arizona law, and the law of most states, when there are multiple documents that are internally inconsistent the most recent one is treated as revoking the earlier one. In other words, if you sign a new health care power of attorney as you arrive in Wisconsin this summer, you may have revoked your existing health care power of attorney. When you come back next fall, you’ll need to sign another one. The cycle can be endless, and the year that someone actually needs to make decisions for you will be the year you overlooked the update.

As for travel outside the country — that’s a lot harder to generalize about. In many countries the very concept of advance directives is foreign (that pun was completely intentional). Best advice: look up the country you’re visiting and see what you can find out, and take a copy of your advance directives with you just in case they’ll be helpful.

What should you do about domestic travel? Here are a few thoughts for the itinerant or part-time Arizonan:

  1. Plan for your travel when you first sign your power of attorney. Do you want your daughter to make your health care decisions while you’re here, and your son in Illinois? Tell us and we can draft for that. Do you spend lots of time every year in Virginia? Let us know and we can double-check whether Virginia is particularly problematic (we have — it’s not).
  2. Make sure that you’ve talked with family members about your wishes. Those making decisions for you need to know what you would want. Those NOT making decisions for you particularly need to know — we’ve had lots of cases where the distant family member said, more or less, “Mom NEVER would have said that if she’d been in her right mind.” Tell everyone what you want while you’re clearly still in your right mind, and that will reduce the possibility for conflicts based on where you are, what your documents say (or don’t say) and whose form you used.
  3. In addition to your advance directives, you might want to write some thoughts about end-of-life treatment. The best ones are in your own words, but there are others out there — like the well-known “Five Wishes” document, which you can create, review and pay for online. We would rather you didn’t sign this form, though — we don’t want you revoking your valid Arizona advance directive unintentionally. Customize it, print it out, and bring it with you when you visit us — we can talk through it and adopt those portions you like. Note that even the people who promote Five Wishes identify 8 states where the document does not meet requirements of state law.

If you do travel a lot, or have homes in more than one state, you probably are not a good candidate for a pre-printed advance directive form. If you signed your will (and maybe your living trust), and then filled out a form at the hospital, doctor’s office, church seminar or public forum, we need to see you again — you probably have inadvertently revoked the power of attorney we prepared for you when you first came in. If you haven’t yet gotten around to doing anything about this, get moving. First download the Five Wishes document (see above), or the Arizona health care directive forms, and then make an appointment. Let’s get this done.

(Note: don’t live in Tucson? OK — do everything we say here, but then make your appointment with a local lawyer who knows about this stuff.)

(Further Note: we haven’t said anything here about financial powers of attorney. There is also state-to-state variation in those forms, but the subject is quite a bit more complicated. We’ll take that up in another newsletter one day — when we have more courage and time.)

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Agent On Power of Attorney is Personally Liable for Legal Fees

MARCH 3, 2014 VOLUME 21 NUMBER 9

Let’s say that Billy signs a power of attorney, naming his friend Joyce as his agent. Later Billy becomes incapacitated, and his agent needs legal advice about her rights and responsibilities. Who will pay for their legal advice?

Generally speaking, you are not supposed to have to spend your own money for things you need to do while acting under a power of attorney, and that includes getting legal advice. But the real world can sometimes get in the way — Billy’s assets may be insufficient to pay legal fees, there may be a dispute about whether his agents are acting in his best interests, or there may be personal interests that they are simultaneously promoting.

This concern is not academic, at least for the people involved in a recent Arizona Court of Appeals decision. “Billy” in that case was Billy Preston, who was sometimes tagged as “the fifth Beatle.” He became seriously ill in 2005, and was admitted to a hospital in Phoenix; he died in June, 2006, after months in a coma.

Billy had signed a medical power of attorney in 2004, naming his friend Joyce Moore as health care agent. Joyce was already his agent — she had represented him as a musician for some years before he signed the health care power of attorney. In March, 2006, while Billy was comatose, his half-sister petitioned the Arizona probate court to be named Billy’s conservator. Although Joyce’s power of attorney put her in charge of medical, not financial, decisions, she felt that she needed legal advice. Joyce hired a Phoenix law firm to represent her; she signed a retainer agreement on March 30, 2006.

Apparently, Joyce and her lawyers did not have the same understanding of their relationship. While Joyce later testified that she thought her lawyers represented her only as health care agent for Billy, her lawyers insisted that they represented her as an individual because of her financial dealings with Billy.

Joyce insisted that her lawyers should submit their bill to Billy’s estate; whether or not that made sense, it was an impractical way to secure payment since the Billy Preston estate had declared bankruptcy. In fact, the estate sought (and recovered) some of the retainer fee Joyce had given to her lawyers, since it had come from Billy’s estate and had not been approved by the bankruptcy court.

Three years after Billy Preston’s death, Joyce’s attorneys sued her personally for about $30,000 in legal fees. Joyce argued that she was not personally liable for the bill; a fee arbitration process found otherwise, and awarded $13,550.86 in legal fees and costs to the law firm. Joyce appealed and set the dispute for trial.

After a three-day trial, an Arizona jury ruled that Joyce personally owed her lawyers $20,000. Joyce appealed the judgment. Last week the Arizona Court of Appeals upheld the award of fees and costs to Joyce’s lawyers, finding that she had not produced sufficient arguments to overcome the jury’s award. Burch & Cracchiolo, P.A. v. Moore, February 27, 2014.

The ruling itself is not actually all that revealing. Joyce represented herself for the appeal, and did not submit transcripts of the trial proceeding; in the absence of those transcripts, the appellate court ruled that she could not show that there had been mistakes in the trial court. The real value of the case, for our purposes, is a chance to explore the authority of agents under powers of attorney to hire lawyers (and other professionals).

There is little doubt that an agent can hire an attorney, accountant, physician or other professional as may be needed in order to discharge their obligations as agent. So, for instance, it would be easy to imagine a circumstance in which there were legitimate legal questions about the agent’s authority, or powers, or duties, and hiring a lawyer might well be necessary and appropriate to help figure out the answers to those questions. That lawyer’s fees would ordinarily be charged against the estate of the principal (the person who signed the power of attorney).

Similarly, it would be easy to imagine that a financial agent might need to hire an accountant to prepare tax returns or accountings, or to investigate past transactions. Those charges should be paid by the estate in most cases, too. Same thing for hiring a doctor, or a social worker, or a case manager, to help oversee care of a person who has signed a health care power of attorney.

Problems can and do arise when the agent also has business dealings with the principal before the power of attorney is signed or used — and such circumstances do happen. After all, it often makes sense to name your business associate to manage your own finances — typically they might know more about your finances than others, even family members. But that can complicate the responsibility to figure out what the attorney (or accountant, or medical professional) is doing for the agent as agent, and what is being done for the agent as an individual.

It’s hard to tease out how much of that might have been going on in Billy’s case, since the appellate record is sparse. But confusion between the lawyers’ view of their role and the client/agent’s view is not that uncommon; it’s why a fee agreement should spell out the precise relationship and who will be responsible for payment.

Typically, a lawyer’s fee agreement might provide that bills will be submitted to the principal’s estate. If they are not paid for any reason (even though that failure or refusal of payment might be challenged), the fee agreement often will provide that the agent is responsible for payment and for seeking reimbursement from the estate. Such a provision might have been in Joyce’s attorney’s fee agreement, but the appellate court did not mention it.

Does all that mean that you should refuse to act as agent because  you might incur personal expenses if things go awry? If you are very skittish about the possibility, you should consider whether it is important enough for you to decline. In the real world, however, disputes like this are rare — and your loved ones need someone to step up and take responsibility for their care if and when they are unable to do it themselves.

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More Definitions for Estate Planning Terms

FEBRUARY 10, 2014 VOLUME 21 NUMBER 6

Last week we gave you short definitions of some common estate planning terms, like “will” (and “pourover will”), “trust” (including both “living” and “testamentary” trust), “grantor trust” and more. This week we want to continue that project with another batch of common terms:

Durable power of attorney — sometimes called a “financial” or “general” power of attorney. The key is that the power of attorney continues (or becomes effective) even if you become incapacitated. This is simultaneously the most important and most dangerous document that most people will sign with their estate planning. Why dangerous? Because it gives such broad, mostly unchecked power to someone else to handle your finances.

Living will — a document by which you give directions about how you would like to be cared for (or what care you would prefer not to have) at the end of life. That’s not the only time the living will is effective (or important), of course, but that’s what people usually think of. This is the document you might sign to direct that you not receive artificially-supplied food and fluids at a time when you are no longer able to make decisions yourself. OR you might direct that you DO want food and fluids (and/or other care) provided in such a situation.

Health care power of attorney — you can designate someone else to make medical decisions for you if you become unable to make or communicate decisions yourself. That person is called your “agent” or “attorney-in-fact,” and the document that names them is your health care power of attorney. That’s the term usually used in Arizona, by the way — other states might use different terms for the same concept.

Advance directive — any document by which you provide for medical decision-making in the event that you become incapable is called an advance directive. The most common advance directives are health care powers of attorney and living wills, but there are others. In Arizona, for instance, you might have an advance directive about mental health care decisions, or rejecting resuscitation measures, or even giving someone authority to decide when you should stop driving. These are a little bit more specialized, and you should talk with your attorney about them.

UTMA accounts — UTMA stands for “Uniform Transfers to Minors Act”, and it refers to a law that has been adopted in some form in every American state. It amounts to a simple sort of mini-trust set out in the law — rather than pay to have a trust set up for a minor, you can simply make a gift to a UTMA account. That makes it easy and inexpensive. It also means that you are stuck with the terms of that legislative trust, but it’s one way to make gifts to children and grandchildren.

529 plans — as long as we’re writing about children and grandchildren, we should mention these popular methods of making gifts. “529” refers to the section of the Internal Revenue Code which both permits and governs these accounts. Once again, it is a simple and inexpensive way to make a gift to your child or grandchild, provided that the primary purpose of your gift is to pay for future educational costs. Ask your attorney (and also your accountant and financial planner) for more information and direction if this idea seems appealing.

“Crummey” trusts — sometimes called “irrevocable life insurance trusts” (or abbreviated as ILITs), these trusts are a method of transferring assets (often, but not always, life insurance) to future generations without making the gift outright and absolute. The nutshell version: you make a gift of less than the annual exclusion amount (see below) to a trustee, and the trustee notifies the beneficiary that they can take out the gift. When they don’t remove the gift, for tax purposes the transfer is treated as having been made by the beneficiary, so the gift is deemed to have been completed. These trusts are often used to allow gifts of the annual premium amount for life insurance, or to make gifts without giving the beneficiary a chance to misspend the gift.

Annual gift tax exclusion amount — there is a tremendous amount of misunderstanding about this concept. In 2014 you can make a gift of up to $14,000 to any person without having to explain yourself to the Internal Revenue Service or anyone in the federal government. Your spouse can do the same thing — even if it is your money that funds the gift. You (and your spouse, if he or she participates) can do the same thing for as many individuals as you’d like. Here’s the misunderstanding part, though: if you give, say, $20,000 to one person, that doesn’t mean you pay an gift tax, or you have to get government approval. It just means you have to file a gift tax return — and if the amount you total up from all of those returns over your lifetime gets to $5,000,000 (it’s actually more than that, but we’re trying to make this simple) then you might have to pay a gift tax. This $14,000 figure, by the way, has absolutely nothing to do with Medicaid eligibility (yes, you can make a $14,000 gift — but it might make you ineligible for Medicaid even though it’s blessed by the IRS).

And, finally, this perennially popular concept/term:

EINs — “Employer Identification Numbers” are issued by the Internal Revenue Service for probate estates, trusts, and other entities that might have to file income tax returns. When someone asks for your “TIN” they mean that they want either your individual Social Security Number or the appropriate EIN. Even if the trust or estate does not have employees (and even if it never will) it still gets an Employer Identification Number (EIN). Does your trust need to have an EIN issued? That is an enduringly popular question, which we have addressed several times before (and undoubtedly will again).

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Are You an Organ Donor? Are You Sure?

JULY 15, 2013 VOLUME 20 NUMBER 26

Do you have strong feelings about being an organ donor? It is a topic that too often goes undiscussed while preparing your estate plan. That’s one time to consider whether you want to be an organ donor — particularly if you have meant to address it but haven’t gotten around to the topic.

You probably remember the last trip you took to update your driver’s license, but maybe you cannot remember if you ever registered to be an organ donor. Or perhaps, you’re a registered donor, but have not had a conversation with your friends and family about your decision to donate. Maybe you feel strongly that you do not want to donate your organs. In each of those circumstances, it is important to make your wishes clear and to talk with your family and your attorney about the topic.

The National Conference of Commissioners on Uniform State Laws adopted The Uniform Anatomical Gift Act in 1968 and went on to revise the Act most recently in 2006.  Arizona is one among over forty states that adopted the newer version of the Act. Arizona Revised Statutes §§36-841 (and the 20-or-so following statutory sections), lays out the groundwork for making an organ donation in the state. Arizona is unique in that it is one state where a donor may register and select what specific organs he or she wishes to donate.

But how do you become an organ donor in Arizona? If you are 18 years or older, you can become a donor by registering with Donate Arizona, or including written instructions in your will. Additionally, you can include language in your power of attorney that authorizes your Agent to consent to donation. Even if you never register, you can still become a donor if you include language in your will or power of attorney providing your agent with authorization to donate on your behalf. It is never too late to sit down and make your wishes clear.

Kris Patterson, with the Donor Network of Arizona, encourages people to do three important things if they wish to donate: register with a local network; talk to your family and friends about your desire to become a donor; and let your doctors determine whether you are a good candidate to donate.  She explained that people frequently assume that they are too old to donate, or rule out registering to become a donor because they have a bad heart or bum hip. When it comes down to it, there is no litmus test that identifies whose organs can be used.

The Act lists people in order of priority who may provide consent upon your death to become (or not become) a donor. The person who you appoint as your Agent under your power of attorney is first in line. If you do not appoint an Agent, the Act provides that a family member, a guardian, or friend, and in certain cases, even a domestic partner can share your decisions about organ donation with medical personnel after your death. As a last resort, you can always include instructions about organ donation in your will.

So, take a moment to think, have you made a decisions about organ donation? If so, does your family know? Have you been thinking about making an appointment to update your old will or power of attorney? If so, when you come in to see us, let’s talk about organ donation and make sure that your documents reflect your decisions.

Executive summary:

Want to make sure you are an organ donor? If you are an Arizona resident, do these three things:

  1. Fill out the Arizona donor registration form. Include any special provisions (like approval or refusal for individual organs, preference for transplant over research or the reverse, or anything else you feel strongly about).
  2. Include a provision authorizing organ donation in your health care power of attorney.
  3. Talk with your family — especially the agent on your health care power of attorney AND any family member who might not approve of organ donation.

Want to make sure you are NOT an organ donor? Do these two things:

  1. Make your wishes clear in your health care power of attorney (and maybe in your will as well).
  2. Talk with your family — especially the agent on your health care power of attorney AND any family member you think might really want to approve organ donation.

 

 

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Privacy and Medical Records: A Few Words About HIPAA

JUNE 3, 2013 VOLUME 20 NUMBER 22
A delightful, intelligent and witty client of ours (nearly all our clients are delightful, intelligent and witty) visited her podiatrist’s office. Our client has always battled problems with her weight, so when an assistant insisted that she step onto an office scale she declined. I’m pretty sure, she said, that my podiatrist doesn’t really need to know my weight, and I just don’t like scales. The podiatrist’s assistant smiled understandingly but insisted. “I’m sorry,” she said, “but we have to take your weight on each visit. It’s required by HIPAA.”

Experienced elder law attorneys and people working in the medical field will likely have laughed out loud at that story. It is a good illustration of just how misunderstood HIPAA really is.

HIPAA, for those less familiar with acronym-speak, is the Health Insurance Portability and Accountability Act of 1996. As the name of the law indicates, it has been around for nearly twenty years, though it came to more prominence in 2003, when the first round of regulations implementing the law became effective. HIPAA has since been blamed for all manner of silliness — including the mandatory weigh-in at our client’s podiatry office, the “please stand behind this line” sign at your local pharmacy counter, and (our personal favorite) the sign-in sheet at your doctor’s office that variously requires either your first (only) or last (only) name — apparently on the theory that your privacy is better protected when the receptionist shouts out “Mr. Johnson?” or, in another office, “Dave?”

What does HIPAA actually provide? It mandates that your health care providers — pretty much all of them — keep your records and data confidential. It is an attempt to prevent sale and recirculation of identifiable data. You would probably not want your name added to a list of people diagnosed with a given condition, and then sold to an insurance company, or a medical supplier. HIPAA is on your side.

But here’s the more difficult part. HIPAA doesn’t mandate that doctor’s offices treat you like (or actually issue you) a number to hide your name. It doesn’t require that you weigh in at your podiatrist’s. It doesn’t prevent the hospital where you are being treated from communicating with your doctor’s office or your pharmacy. It also doesn’t give you the right to sue your doctor, hospital or pharmacist for violating your privacy.

What does get prosecuted under HIPAA? Not much. Last year, according to the US Department of Health and Human Services, there were about 10,000 HIPAA complaints received. About two-thirds of those were dealt with summarily, and another large segment are deemed to involve no violation at all. That leaves about a quarter of all cases in which some sort of corrective action is mandated — which does not mean fines, or criminal prosecution, or even public disclosure of offending offices or providers.

From time to time there are serious fines levied. Just last month, for instance, Idaho State University paid a $400,000 settlement for disabling its firewall protection on servers housing patient data on almost 20,000 individuals cared for in its clinics. And just a few months earlier, Hospice of Northern Idaho agreed to pay $50,000 to resolve violations centering on the theft of an unencrypted laptop containing records of 441 hospice patients. The Hospice of Northern Idaho case was a landmark, according to the Department of Health and Human Services: it was the first time the agency had entered into a settlement involving security breaches involving fewer than 500 patients.

Obviously, the privacy regulations governing health care providers have a big impact on the provision of services and on patients. But what does this have to do with lawyers — especially since lawyers can not file lawsuits on behalf of clients who believe that their HIPAA privacy rights have been violated? It is the doctrine of unintended consequences writ large: lawyers who draft estate planning documents for clients want to be sure that they will be effective at a later time when the client may not be able to give consent. But there is concern that doctors, hospitals and other health care providers will not deal with family members, even if they have been named as agent in a properly drawn power of attorney.

We should not have to worry. The Department of Health and Human Services has made clear that it permissible for medical providers — including doctors, pharmacists, nurses and social workers — to talk with family members unless the patient has expressly forbidden such conversations. Among the frequently asked questions prominently listed on the DHHS website is this one:

“If I do not object, can my health care provider share or discuss my health information with my family, friends, or others involved in my care or payment for my care?”

The answer, in a word, is “yes.” Read the DHHS answer for more detail.

Much of the hyperbole about the reach of HIPAA, and the difficulty in complying, is just silly. Your doctor is supposed to have a plan for protecting your health records, and not to share them inappropriately. That should not preclude talking with either your family or your other health providers (hospital, pharmacist, social worker). But to be safe, your health care power of attorney, your financial power of attorney and even your revocable living trust could include a provision expressly authorizing your agent and trustee to talk with your doctor when it is necessary to get updated medical information.

And our client with the anxiety about stepping on the podiatrist’s scale? We explained the law to her. “That’s just silly,” we said. “HIPAA doesn’t mandate that they weigh you at every visit. That’s the Patriot Act.”

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Driving, Aging and Dealing With Family Dynamics

APRIL 1, 2013 VOLUME 20 NUMBER 13
Driving. It’s an issue for seniors. And their families.

According to the Centers for Disease Control, drivers over age 75 are at particular risk for fatal accidents, and that risk continues to grow as those older drivers age. The CDC is candid: it’s hard to tell how much of that is related to increased frailty and susceptibility to injury, and how much is the result of worsening vision and slower reaction times. Ultimately, though, it doesn’t really matter: fatality rates are much higher for older drivers (on a per-mile-driven basis) than even for brand-new drivers under age 20.

When is it time to stop driving, and who is best able to tell the time has arrived? Or are those even the right questions to be asking? If you have an older family member, or you are aging yourself (yes, we know that that includes every reader), then you should be concerned about the issue. Fortunately, there is some help available.

First, let’s wrestle with what may be the biggest problems in encouraging a senior to drive less, or to stop driving: there is plenty of emotion and psychology involved, and there are too-few alternatives. It is seldom good enough to just insist on your parent or spouse giving up the car keys. You need to consider the problem from their perspective.

In our modern American culture, we tend to identify with our automobiles. I may favor a flashy, brightly-colored muscle car; you may prefer a solid, responsible and reliable set of wheels. My brother, on the other hand, might be a nut about saving gas. All three of us are making statements about our interests, preferences and personalities when we pick out a car. There is little else which says so much about us and simultaneously provides so much freedom.

So if you think I ought to stop driving, I am going to be very resistant. At root, my objections might be very practical — it’s too hard to get errands done, I don’t want to rely on anyone else, I’m not really driving that much any more anyway — but those objections will be more forceful because you are getting too close to my sense of self.

Before you tackle restricting the driving of an aging family member, it would be wise to review the arguments, prepare some strategies, and figure out what has worked for others. The good news: there are several good resources to help you with that project.

Let’s start with the AARP, which has done extensive work on driver safety and education. The AARP’s focus on aging drivers is unsurprising, but you may be surprised at how well they have analyzed the issue and how much material is available. Start with the online seminar called “We Need to Talk.” It will take about an hour (a little more if you stop along the way to scratch out questions or approaches, or if you re-review some sections). You may be surprised at how well it helps prepare you for your talk with a family member about your concerns.

Maybe what you really want is a review of driving skills, or a refresher course with emphasis on abilities that change over time. The AARP has some help there, too — it offers a link to driver safety courses for seniors. A quick check as we wrote this found three courses within a few miles of the Fleming & Curti, PLC, offices scheduled in the next month. Plus there’s an online version of the course, too.

Maybe you’re past this point with your family member. Can you disable the vehicle, force a review of their driving ability, or take stronger action? Yes, but first look at two publications produced by AARP, MIT’s AgeLab and The Hartford Insurance Company. One, “We Need to Talk,” is the basis for the AARP seminar described above. You can also order printed copies if you want to leave one lying around, or share with siblings or other family members. Copies are free, and you’ll get them in the mail in just a couple of days. While you’re online, you might also download or order “At the Crossroads,” another excellent resource offered by the same consortium.

Arizona drivers’ licenses are valid until age 65 without retesting (you do have to have your picture taken at least every twelve years or so). After 65 a driver has to take a vision test at least every five years, but there is no automatic retest for driving ability.

There is, however, one way to get a family member retested: any one who is concerned about driving ability can request a review for a family member, neighbor, patient or client (many of the requests are filed by doctors and other medical and social service professionals). You can initiate a review by filing a form 96-0469 with the Motor Vehicle Division; after looking at your description, MVD may require a doctor’s report and/or a driving test.

Are you worried about the possibility that you might cause this kind of concern, and force your own children to take similar steps? We have one suggestion for you to head off a similar scenario for your own future: talk to your family, and maybe even consider signing an agreement with your family about driving. You can give someone — perhaps the same person you name as agent on a health care power of attorney, perhaps someone else — instructions to tell you when you need to stop driving, and the power to take steps to stop you from putting yourself and others at risk.

The reality: such an agreement probably has no legal validity. But it could give your chosen family member the moral and psychological power they need to tackle a very difficult problem when you are unable to make the decision for yourself. At Fleming & Curti, PLC, we include such a power in most of our health care powers of attorney; if you would like to sign an agreement on your own, there’s one in the back of the “At the Crossroads” booklet described above. There is also a separate copy of such an agreement on The Hartford’s website; you can download it, review it and sign it on your own. But we really favor talking with your family about it.

A final thought: at least once a week or so, we have a client tell us “I’ll be the first to know when I need help.” Sadly, that has not been borne out by our experience at all.

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©2014 Fleming & Curti, PLC
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