Estate Planning Practice Blog

To HIPAA or Not?

One of the more important components of a valid and up-to-date Advance Health Care Directive is ensuring that it has provisions allowing your agent to have unfettered access your medical information.

Under HIPAA and CMIA (Federal and California laws) medical information is now considered private and a release must be signed by you to allow your agent access. Having this release as part of your Advance Health Care Directive is a smart move.

An Advance Health Care Directive done as little as a few years ago may not contain a provision for a HIPAA and CMIA release. So check yours and get it updated. The provision should look similar to this:

HIPAA AND CMIA HEALTH INFORMATION RELEASE.  I intend my agent, as my "personal representative" as that term is used in the Health Insurance Portability and Accountability Act, 42 U.S.C. Section 1320d, 45 C.F.R. Parts 160 and 164, and as my "patient's representative" as that term is used in the California Civil Code Section 56.10, to be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information and other medical records.  The authority of my agent with respect to the use and disclosure of such information and records shall control my agent's dealings with any physician or other health care provider who is providing health care services to me at any time when my agent shall seek access to such information and/or records.  Subject to any limitations in this document, my agent has the power and authority to do all of the following ... and so on it goes.

Protecting Triplets!

On a personal note, we take great pleasure and pride in assisting families with their business and estate planning objectives.

One of our partners had twins last week and one of our other name partners, Mark Doyle, is representing a family who had triplets not too long ago. And, I (Jenni Sawday) am expecting a second baby this May, which reminds me I need to get my own estate planning documents updated shortly after the new babe is born to practice what I preach!

 
Partner Mark Doyle, in the picture here, met with firm clients when they brought along their 8 month old triplets Toni, Sydney and Max.  The parents live in south Orange County and have business and real estate holdings.   In previous engagements, we established an estate plan, a corporation and LLC's for them. 

Now our current engagement involves working on a private charitable foundation, succession and gifting plan including life insurance. The TLD team will be working together again for these clients to benefit Toni, Sydney and Max years from now. 

Estate Planning -- It's No Joke.

One of the things about being an estate planning attorney is that when there is a joke circulating involving our practice, it can be both funny and sobering at the same time.

Here is a joke that was sent to me twice last week:

Dan was a single guy living at home with his father and working in the family business.

When he found out he was going to inherit a fortune when his sickly father died, he decided he needed a wife with which to share his fortune.

One evening at an investment meeting he spotted the most beautiful woman he had ever seen. Her natural beauty took his breath away. "I may look like just an ordinary man," he said to her, "but in just a few years, my father will die, and I'll inherit 20 million dollars."

Impressed, the woman obtained his business card and three days later, she became his stepmother.

Women are just so much better at estate planning than men.

The sobering part -- an estate plan is essential to have your wishes carried out when you die.

Sure, there are will contests, trust contests and all sorts of other things that can come up, but having your wishes known is really important in the larger scheme of things. The courts look to the testator or settlor's intent when ruling on these matters and in the long run, we all like to believe that the good outweigh the evil. And, as it so happens most of the time, people's wishes are dutifully carried out in their estate plans after their passing.

More on Conservatorships.

A conservatorship is often a poor substitute for estate planning. With a proper estate plan in place including powers of attorneys, assets funded into a trust and so on -- the hassles of a court oversight for a conservatorship can largely be avoided in most circumstances.  Moreover, the courts and the legislature are enacting more stringent requirements for conservatorships in general.

Here is a quick run down of some of the new requirements:

CARE PLANS
For conservatorships established as of July 2007, a Care Plan must be filed at least within 60 days of issuance of the Letters of Conservatorship. This Care Plan must be updated annually thereafter from the date it was first filed. Note that for conservatorships established before July 2007, a Care Plan may not be required unless specifically ordered by the court. INVENTORY
For every conservatorship, the court requires an inventory of the conservatorship assets be filed with the court within a specified number of days from the establishment of the conservatorship.

CHANGE OF ADDRESS
For every conservatorship, the court requires that the conservator notify the court immediately if they have moved.

ACCOUNTINGS
One of the most important aspects of the court oversight of all conservatorships is the accounting requirements. Each conservator is required to provide to the court an accounting of the conservatorship estate for approval. This includes tracking all financial and medical expenses borne by the conservatorship estate for care of the conservatee. It includes preparing an accounting in the required court format and having bank statements and other documentation available for the court's review.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Big Time Conservatorship: Britney Spears.

Judge Reva Goetz in Department 9 at Los Angeles Superior Court, Central Courthouse granted a temporary conservatorship over Britney Spears on Friday, February 1, 2008. It is known that a conservatorship naming her father to manage her finances was granted. It is not clear if powers were granted to also make medical decisions by her father or another person.

Conservatorships are granted where there is a good showing that an individual is unable to properly care for themselves financially and/or medically.

The attorneys at Tredway, Lumsdaine & Doyle often appear before Judge Goetz on probate, trust and conservatorship matters. It is interesting to hear about our regular lives as attorneys intersect with those of celebrities especially in Los Angeles.

For more information, which I am sure is readily available everywhere on the net, click here.