Estate Planning Practice Blog

National Healthcare Decision Day

April is the month of special days.

The day after April 15, which needs no recognition, is National Healthcare Decision Day. Does this mean that after  you sign and seal your tax return, your health takes a turn for the worse and having an Advance Health Care Directive is necessary?

For more information about this day, check out National Healthcare Decision Day website.

The National Healthcare Decisions Day (NHDD) Initiative is a collaborative effort of national, state and community organizations committed to ensuring that all adults with decision-making capacity in the United States have the information and opportunity to communicate and document their healthcare decisions.

At Tredway, Lumsdaine & Doyle, we prepare an Advance Health Care Directive for every client as part of their estate plan. This document is a must for everyone over the age of 18 to make their wishes known as it relates to healthcare decision making.

On April 16, think of your own wishes and get your Advance Health Care Directive put in place or updated!

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.

HIPAA Short for Hippopotamus?

HIPAA, or HIPPA as often stated by many, is not a shorten version or modified pig-Latin for hippopotamus. (Though I am often reminded by hippos when I think of HIPAA.)

HIPAA is an acronym that stands for Health Insurance Portability & Accountability Act of 1996. There are many aspects to HIPAA as evidenced by this website maintained by the federal government.

California's codification of HIPAA is CMIA (meaning Confidentiality of Medical Information Act), which more information can be found here and the text of the statute here.

So, in plain language and in a nutshell, HIPAA and CMIA says that your medical information is now considered private and if you want your family or other loved ones to have access to your medical information, you must have a written HIPAA and CMIA release.  Think of the release as a permission slip to see your medical information/files/records, etc.

Properly created Advance Health Care Directives will contain the necessary language to include a HIPAA and CMIA release.

Make sure yours does.

If you don't have a Advance Health Care Directive, this is a good reason to get one prepared as soon as possible. You never know when you might want your spouse or adult child (or other loved one) to help you with medical decisions, see your file or otherwise speak to one of your medical providers on your behalf.

Burial at Sea.

In a Advance Health Care Directive, you can indicate your wishes for funeral services and whether you wish to be buried or cremated. Many clients choose to be cremated with their ashes scattered at sea.

Another option is to have funeral services also at sea. In Southern California, this is possible as many charter boat companies will arrange for this on one of their boats. Dana Wharf at Dana Point, California, has packages for burials at sea.

Another popular service for cremation at sea is the Neptune Society. There are many Neptune Societies so be sure the one you contact is located with your county or state.

California has laws regulating burials at sea and permits are required. For more information about California's laws and regulations regarding funeral and cemeteries and everything else in between, check out the consumer guide from the Cemetery and Funeral Bureau website.

Leaving Written Instructions for End-of-Life.

Many states are enacting right-to-live legislation. Meaning that the default choice for end-of-life wishes in those states will be to be kept alive at all costs including being on a respirator, receiving nutrition and hydration for example.

I have no opinion on this, but I can tell you that if this does not comport with your wishes for your end-of-life choices... then having an Advance Health Care Directive or other document valid in your state is important.

You have the right to make your own medical decisions even if you cannot physically make them. That's what an Advance Health Care Directive does -- it allows you to appoint an agent to make decisions for you. You also indicate what your wishes are for end-of-life. This document can also be customized with your additional wishes whatever they may be.

It's all about your choice and making them known.

4 Points for Advance Health Care Directives.

It is estimated that four out of five Americans do not have a written health care or end-of-life directive to help their families make decisions for them if they become incapacitated.

Health care and end-of-life advance planning, if done right, accomplishes four things:

1. Ensures that the person you want to speak for you has the legal authority to do;
2. Helps ensure that your wishes about your health care are known and respected;
3. Avoids unnecessary, intrusive, and costly medical treatment at the point you no longer want it; and
4. Reduces the suffering experienced by your loved ones, because they will have your guidance.

Having your Advance Health Care Directive in place is an essential part of a completed estate plan. You can prepare an Advance Health Care Directive as a stand-alone document as well and not part of an overall plan. Having things in place even in bits and pieces is almost better than nothing.

Witnessing Your Medical Directive.

If you have an Advance Health Care Directive in place, please make sure that it is either notarized or witnessed by two qualified adult witnesses. If you use witnesses rather than a notary public, the law prohibits using the following as witnesses:

1. The persons you have appointed as your agent or alternate agents.

2. Your health care provider or an employee of your health care provider.

3. An operator or employee of an operator of a community care facility or residential care facility for the elderly.

4. And, at least one of the witnesses cannot be related to you by blood, marriage or adoption, or be named in your will, or by operation of law be entitled to any portion of your estate.

So, who is your best witness? Your friends, your neighbors or your attorney if they are not receiving a bequest or money from your will or estate.  If you have these documents prepared by an attorney, your attorney will usually act as one witness along with a staff member from that attorney's office.

You might ask why use witnesses when you can get it notarized. Notarization by a notary public is usually not free and you might have a harder time finding a notary public when you need one rather than finding two impartial witnesses.

Who Makes End of Life Decisions When There is No Medical Directive?

Say someone is no longer able to make medical decisions concerning their end of life care. What happens now?

First, the doctors and family will look to see if the patient has a valid Advance Health Care Directive.

Say the patient never prepared an Advance Health Care Directive. What happens now?

Second, state law may dictate who has priority of making medical decisions. Not all states have such laws defining the hierarchy of who can make medical decisions for those unable to. California doesn't have any laws on the books regarding this.

California does have Probate Code Section 3200 et. seq., which offers a court procedure to petition the court to assist with the decision making process in the absence of an Advance Health Care Directive.  There is also two other court avenues that may be taken -- one is to obtain a conservatorship over the person or petition the court for substituted judgment.

I can already tell you that without explaining the nuances of any of these procedures, they are costly in terms of court filing fees, legal fees and have a high emotional cost while waiting for a judge to decide on the fate of your loved one.

Third, some medical institutions also have manuals or policies dictating who should make medical decisions in the absence of an Advance Health Care Directive. Check with the hospital where your loved one is at for end of life care to see if they have such procedures in place.

All in all, not having an Advance Health Care Directive stating your preferences for end of life wishes may cause your loved ones untold agony and discord especially if your loved ones don't agree.

Are Your Children Just Turning 18?

When your child turns 18 years of age, he or she is a bona-fide adult.  This means that Mom or Dad cannot step in and make medical decisions for their newly minted adult children.

I've written about this before, but your children who are just turning 18 really need to have an Advance Health Care Directive in place.  This is reinforced by Jane Bryant Quinn's latest essay on "As Kids Grow, So Do Risks" in this week's issue of Newsweek magazine.

Jane Bryant Quinn writes:

"Did you know that you lose control over your child's medical decisions when he reaches 18? He's entirely in charge. If he can't choose (say, he's in a coma), the doctors will stabilize him. After that, it all depends. ... But what if the parents are separated and disagree? ... To clear the path, your 18-year-old should put two decisions in writing. First, how he wants to be treated if he's in a permanent vegetative state or terminally ill. ... And second, who should make health-care decisions if he's unable to speak for himself ... Ideally, these documents will be drawn up by a lawyer..."

In California, only one document is needed for medical decision making: an Advance Health Care Directive.

This document allows you to nominate who should make medical decisions for you in the event you are unable to do so and you can also state your wishes for end of life decisions including life support, organ donation, authorizing an autopsy and making your choice known for disposition of your remains.

Kind of a gruesome topic to talk to your 18 year old about, but a necessary one especially if your child still wants Mom or Dad to handle his or her affairs until they get a bit older or get married.

Estate Planning Documents A La Carte?

Estate planning when it is all set and done is often a variety of documents prepared in accordance to your wishes and financial situation that work in conjunction with each other to accomplish a variety of objectives.

Sometimes you may only need one or two documents prepared as a stop-gap measure before you are able to deal with the larger estate planning concerns for your family.

Obviously, the largest barrier to estate planning for most Americans involves money. Most Americans don't have enough money in their checking account to write a check for a grand or two to an attorney for estate planning documents without budgeting for it.

One way to get around this is to ask your attorney if he or she would be willing to prepare estate planning documents a la carte.

Here are some ways this can work:

• You are leaving for a two week trip to Europe. You want to name someone to manage your financial affairs while you are out of the country. And, better yet, you want this power to be effective for only the month of October. A Durable Power of Attorney with an expiration date of midnight, October 31, 2006, would accomplish this. [An expiration date of midnight, October 31 would truly be a witching hour.]
  
• You find yourself communicating with a loved one's doctor for a recent medical condition. Your loved one is having a hard time understanding their treatment options and want you to get involved. Your loved one can appoint you as their agent in their Advance Health Care Directive. This Advance Health Care Directive can be effective immediately.
  
• You have a minor child. You and your spouse are worried about who would be named guardian for your minor child if something happens to you and your spouse at the same time. You can draft a Will with testamentary trust provisions to nominate guardians for your child and put it place a trust to be formed if you and your spouse passed away.

One document alone does not make a proper estate plan, but it is important to realize that each document has different objectives and can be prepared independently.

Most attorneys charge a flat fee to prepare these kinds of documents. The flat fee is usually equivalent to one hour of the attorney's normal hourly rate.