Many Power of Attorney and Health Care Proxy Documents Should be Revised in Massachusetts

If you’ve had legal documents drafted in Massachusetts pertaining to your health, financial, and long-term care wishes, you should have them reviewed and revised now! Massachusetts laws relating to powers of attorney and health care proxies have recently changed. This along with federal medical privacy laws can affect your already-created documents.

The federal law, known as the Health Insurance Portability and Accountability Act (HIPAA), generally prevents health care providers from disclosing your personal medical information to anyone other than you and someone you’ve named as your “personal representative.” Frequently you will sign medical releases at your physician’s office allowing them to communicate with any specialists you are seeing, like a podiatrist or a cardiologist. Protecting your medical privacy is very important but the law can create some complications.

Madelyn executed a Health Care Proxy that names her daughter, Stella, to make medical decisions when/if she is unable to make them herself. Unfortunately, her Health Care Proxy doesn’t include a HIPAA provision due to poor planning. Madelyn develops dementia and Stella feels that the doctor may be overlooking an undiagnosed mental illness. This is in addition to Madelyn’s cardiac issues. Since Stella isn’t the “personal representative” under HIPAA regulations, she has had a lot of difficulty speaking with her mom’s doctors and accessing written medical information. She is frustrated because she can’t make the best health decisions for her.

Madelyn also executed a Durable Power of Attorney which also named Stella to make her financial decisions if she would be unable to make them in the future. But, again, the document did not name Stella as her HIPAA “personal representative.” Stella cannot access Madelyn’s medical information and cannot prove to Madelyn’s financial institutions that she is indeed incapacitated. As a result the Power of Attorney document is of little value and may force Stella to seek out a costly Conservatorship in probate court.

To make sure your chosen agent(s) do not get caught up in this conundrum, your Power of Attorney and Health Care Proxy documents should contain HIPAA clauses. It is also highly recommended, and has long been the practice of this office, to sign separate HIPAA release forms.

Lacking HIPAA provisions isn’t the only reason why Health Care Proxy and/or Power of Attorney documents fail. Did you know that recent Massachusetts laws directly affect the way these documents should be drafted to be fully complete? Also easy to overlook items like lacking specific powers, or not having the document executed properly, can leave your family in a tough situation where they have to go to court to get the power you intended to grant them in the first place.

If you are concerned that your Health Care Proxy and/or Power of Attorney documents are lacking, please contact Vickstrom Law to make sure they are complete and comply with the new laws.

Photo credit, cyOFdevelin and used under a Creative Commons license.

Let Someone Know Your Medical Wishes For National Healthcare Decisions Day

National Healthcare Decisions Day is on April 16^th, and it’s an important reminder for every adult to let someone know their most private wishes about medial treatments and possible end-of-life care.

Far too many people assume that their families would make the choices they would want in an emergency.  Yet everyday we hear stories of adult children, siblings, or other relatives/friends battling during a health care crisis over “what their loved one would have wanted” in that situation.

The Terry Schiavo case is a great example of this. At the young age of 26, Shiavo suffered sudden cardiac arrest and slipped into a permanent a vegetative state.    She never documented her wishes about things like feeding tubes, life support, and long-term quality of life, leaving her spouse and parents to battle for years over these questions in court.

Her husband eventually had her feeding tube removed claiming, “That’s what she would have wanted.”  But was it really? Her parents certainly didn’t think so. But we’ll never know because Terry didn’t make her healthcare wishes known to her closest family and friends.

But it’s not enough to just tell someone about your wishes.  You need to clearly document your preferences, too.  Remember, emotions can run high during a health care crisis, and it might be hard for your loved ones to stop life support when they desperately want you around.  Having your wishes spelled out in writing helps make these types of decisions easier for your loved ones, especially in cases when family members don’t agree.

So in honor of National Health Care Decisions Day, I encourage you to start tough conversations with loved ones about your personal medical preferences for medical and/or long-term care.  Here are some important questions to consider:

• What are your thoughts on feeding tubes, life support, and other artificial life saving devices?
• Is there any type of medical care you would NEVER want?
• If you were permanently disabled or incapacitated, what things would contribute or take away from your “quality of life?”
• Who do you trust to make important medical decisions if you are unable to speak for yourself?
• What are your thoughts on nursing home vs. in-home health care?  Who would you trust to manage your long-term care? your finances?

These are not the most fun conversations to have, but they will help to ensure that your most personal wishes are honored in a true medical emergency.  Talk them over with loved ones and have Attorney Kristina Vickstrom prepare important legal documents like a Health Care Proxy, a Living Will, and a Durable Power of Attorney. Getting documents in writing that spell out your wishes and the care you want if something happens to you is one of the best gifts you can give your family. It can avoid misunderstandings, family disagreements, and even court battles.

Get something in writing before an unforeseen emergency strikes. Do it early (age 18 and up) and check it often (with a major life event, or at least every 5 to 10 years) to make sure you have the most protection under the current Massachusetts laws and to make any changes to your wishes and/or decision makers.

Photo credit: Shoothead / cc by-nd 2.0

Why Single People in Worcester County Should Consider Estate Planning

When we typically think of estate planning, we see grandma and grandpa putting together a Will and possibly setting up some trusts for the following generations. It’s all about providing for our offspring, right?

Not necessarily. Even if you are single and/or have no children, a Worcester Wills and Estates lawyer like Attorney Kristina Vickstrom should still be in your plans. Why? Because estate planning is really about YOU.

While it is absolutely advisable for married people or those with children to work with an estate planning lawyer, it’s also just as important for single adults. After all, when a married person suffers a major illness, it’s usually pretty clear who will eventually take on their medical and financial responsibility. The water gets murkier for unmarried individuals.

If you were to suddenly become incapacitated, who would make your medical decisions for you? Possibly your parents would be called in to determine how your medical care should proceed. It might be your sibling. But what if you don’t get along with your brother? Even if your parent or sibling would be your first choice, that doesn’t mean that the courts would agree without having your wishes legally documented.

The person to make medical and financial decision on your behalf is whomever the courts decide! Again, it could be a parent, a sibling, some other relative, or even a court-appointed individual (a stranger!). While she was not single when she was hit with dementia, the children of the late signer, Etta James, fought repeatedly with their step-father over the management of her assets and health care. James should have documented her wishes and avoided a lot of the conflict, allowing her family to more fully enjoy her last moments.

Finally, who would have legal rights to your belongings, to your home, to your pets? You may think you know the answers, but without clearly outlining your wishes with a Worcester area Wills and Trusts attorney, you have very little control over the matter. Families can be torn apart by court battles involving an estate with no Will. Popular Swedish novelist Stieg Larsson, who died unexpectedly in 2004, had been living with his girlfriend of 30 years at his passing and had taken on no estate planning. A legal battlefield erupted over his assets, namely the rights to his successful publications. With the exception of an unfinished manuscript on a shared laptop, his girlfriend walked away with nothing and Larsson’s father and brother inherited everything. This also could have been avoided, or lessened, if Larsson had set up even the most basic of estate plans.

A single adult without children does not need to worry about creating guardianships and trusts to provide for his or her children, but it’s certainly a good idea to look out for yourself. Some of the basic legal documents any single person should have include:

• A Will to determine what will become of your assets in the event of your death.
• A Health Care Proxy to name the person you want making medical decisions on your behalf.
• A Power of Attorney for financial matters to name the person you feel should be responsible for your money if you are incapacitated.
• And possibly a revocable living trust to centralize management of assets if you become incapacitated and keep your assets out of probate if you should pass away.

These documents are crucial in ensuring that your wishes are met and that you have control over your future. One doesn’t need to a famous R&B singer or best-selling, author to need an estate plan. Everyone, including single people, in Worcester County, should consider estate planning.  Contact Vickstrom Law today to set up a consultation or to find out more information.

Photo courtesy of Bree Bailey

How Do I Bring Up the Topic of Estate Planning to My Parents?

In Worcester, just as everywhere else in the nation, there is a tendency for people to put off estate planning.  Elder law attorneys, like Kristina Vickstrom, recognize that there are multiple factors that lead people to procrastinate when it comes to the estate planning process.

One of the biggest factors, of course, is that most people don’t want to consider their own mortality, and estate planning forces you to do just that.  When it comes to adult children, we are just as guilty of not wanting to think about the inevitability of losing our parents, and therefore, we choose not to push them.

There are other complex reasons that come into play as well.  An adult child who wants to encourage his or her parents to set up wills and trusts may worry that the parent or other family members will mistake concern for greed.  If the parent has remarried, then even more complex family dynamics can come into play, with the adult child remaining quiet on the subject rather than creating waves.

Elder law attorneys understand these considerations and so many more, but we also know what happens when advanced planning isn’t given enough attention.  When a parent passes away or becomes incapacitated without an estate plan, the fallout can be devastating.  It may fall to the courts to determine who should be given power over medical and/or financial decisions for the parent, and the court’s opinion often does not reflect the wishes of those involved.

Really, having a plan in advance of a tragic event is the best way to ensure it will be handled according to your parents’ desires; and framing the request in this way can be helpful.  At a time in life when they are finding themselves with less and less control, it can be reassuring to know that some of the most important decisions regarding health, money, and property are theirs to make; and that when they can no longer make those decisions, substitute decision makers of their choosing are ready to step in.

In order for this to happen, though, parents need to meet with their elder law attorney while they are still able to make sound decisions and legally sign documents.  Again, most people don’t want to think about losing their mental acuity, but it can be very common.

Creating wills and trusts and setting up powers of attorney and a health care proxy can give your parent the sense of control that they may feel slipping away.  During your discussions with your parent, it can also be helpful to point out that estate planning:

• Allows them to determine who they want to have in charge of their money
• Provides the opportunity to designate who will receive which assets (or none at all)
• Keeps the courts out of the process, or limits their involvement, saving time, money, and hassle for those left behind
• Ensures that THEIR wishes are the ones that matter
• Minimizes the taxes that will be paid out of the estae

Life is busy, and it’s easy to say that estate planning is something that we’ll get to “later.”  However, “later” doesn’t always come when you think it will.  Instead of leaving the decisions (and potential hassles) in someone else’s hands, empower your parents to have a say in their future and the future of their family. Contact Vickstrom Law today for more information about encouraging your parents to handle their estate plan and to set up a consultation.

Joint Bank Accounts for Seniors: Yay or Nay?

Many seniors currently need assistance paying their bills and managing their finances, or may need help sometime in the future.  It’s important to have a trustworthy person authorized to manage your finances should you be unable to do so yourself.  Are joint bank accounts a good option?

Here’s a common  scenario

Florence, an 86-year-old widower, decided to have her eldest daughter, Marie, listed on all her bank accounts after her husband’s passing. She needed some help getting to the bank and figured it was easier to have Marie do it for her. Sometimes, Florence needed Marie to help her write out the monthly bills because she was also starting to have memory issues.

Marie took this responsibility very seriously and made weekly trips to the bank for her mother. A few times Marie helped herself to $200 here and there, just to get her through to her next paycheck. She always put it back… except for the last three times. She just can’t seem to get caught up. Maybe Marie would be able to take on more hours at work but she is very stressed about her 16-year-old son who just severely injured someone in a car accident. She’s thinking about filing for bankruptcy to ease the financial situation.

Be sure to properly assess potential risks

For Florence, adding Marie, or another other loved one, as co-owner on bank and brokerage accounts seemed to be an easy and convenient way of managing her assets and making sure her bills are paid on time.  However, many seniors do not take into account the risks and potential consequences of joint ownership, and the alternatives that can mitigate those risks.

First,  a joint owner has complete access to your accounts and make unlimited withdrawals without your approval. Marie has been helping herself to a little bit here and little bit there for a while now. Florence never knew about it and when she did find out she didn’t ask for it back because she felt bad for Marie. Unfortunately, these were considered disqualifying transfers or “gifts” when Florence applied for MassHealth. She was denied coverage for her nursing home stay because to qualify for MassHealth (Medicaid) you can’t give gifts (or other disqualifying transfers) for five years.

Your co-signer’s liabilities could now be your responsibility

Second, a joint owner is considered owning 100% of the assets, just as you are, regardless of who contributed them in the first place. This leaves your assets vulnerable to their debts and liabilities. If Marie is sued because of her minor son’s  accident, Florence’s bank accounts are at risk. Florence’s bank accounts could also be at risk if Marie files for bankruptcy. If your co-owner goes through a divorce, has a business failure, or gets sued for any other reason, your money could also be exposed to those claims.

Your estate plan could be undermined

Third, when you die, the assets in a jointly-owned account will automatically become the property of the surviving owner.  Florence’s Will directed her estate to be split equally amongst her three children when she died. When she died she only had a few personal effects and a few bank accounts with roughly $10,000. Since Marie was listed as joint owner on all accounts, the funds became legally hers when her mother passed. She knows she has a moral obligation to follow what the Will says, but nobody can make her do it. After all, her brother hasn’t bothered to see her mother in two years and her sister is pretty well-off; she needs the money more than they do anyways. 

Protect your assets

One simple alternative is to have a Durable Power of Attorney prepared by an Elder Law Attorney. Your agent under your Power of Attorney would be able to manage your finances on your behalf, including making withdrawals and writing checks without your permission, but the assets would be owned by you alone. 

Your agent would have a legal duty to manage your finances on your behalf and in your best interest; your assets would not be subject to your agent’s liabilities; and your assets would not automatically pass to your agent upon your death.

It’s important that you speak to an Elder Law attorney about planning for a time when you may be incapable of managing your own affairs.

Online Legal Documents Company (LegalZoom) Sued Over Flawed Estate Plan

This week I’m reposting a fantastic article from ElderLawAnswers about the dangers of online do-it-yourselfing when it comes to planning your estate. Caveat Emptor (Buyer Beware!)

One of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.

The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino’s estate.

Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom’s advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company’s customer service department would resolve them.

But after the living trust documents were created and signed, Ms. Webster could not transfer any of her uncle’s assets into the trust because the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. The trust was still not funded when Mr. Ferrantino died in November 2007.

Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds — a more difficult task following Mr. Ferrantino’s death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino’s estate thousands of dollars.

The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.

“Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only ‘customized’ to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances,” the lawsuit states, adding that “the customer service representatives are not lawyers and cannot by law provide legal advice.”

Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.

“LegalZoom’s business is based on nurturing the false sense of security that people do not need to hire a traditional attorney,” says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. “The complaint points out that LegalZoom advertises that you don’t need a real attorney because its work is legally binding and reliable. That’s misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums.”

“LegalZoom preys on people when they’re at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust,” adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster’s lead counsel.

One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.

This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.

For a copy of Ms. Webster’s complaint, click here.

If you have an estate plan that was prepared by an online preparation service you may want to have it reviewed by an estate planning attorney that is licensed in your state to ensure that it is complete and actually accomplishing your planning goals.

Letting Software or Online Service Plan Your Estate: Is It Worth the Risk?

There are several websites that offer customized, do-it-yourself wills and other estate planning documents. These computer-based services appear to offer the consumer a cost-effective and convenient alternative to visiting an Estate
Planning or Elder Law attorney. Or do they? Is online estate planning worth the convenience and initial savings? How do the documents created compare to those that a qualified attorney would produce?

To answer these questions, ElderLawAnswers asked two experienced Estate Planning and Elder Law attorneys to evaluate three leading online will preparation and estate planning programs: Nolo’s Online Will, BuildaWill, and LegalZoom. Their findings and ElderLawAnswers’ conclusions are presented in a five-page whitepaper that is available for free on ElderLawAnswers website.

The conclusion: “We conclude that while online estate planning could possibly work for people who have little or no property, small savings or investments, and a traditional family tree, the significant remainder of the population should not rest easy using one of these programs and should instead consult with a qualified Estate Planning attorney. In other words, in all but the most commonplace Estate Planning situations (and only an attorney can determine what is “commonplace”), do-it-yourself estate planning programs can be a risky, and often quite costly, substitute for in-person planning with an experienced estate planning attorney.”

I encourage you to read the whitepaper and see for yourself. Common issues with these type of estate plans include oversimplification. For example they do not explain the complexities of naming too many decision makers to serve at the same time, nor do they explain why a minor child or an elder parent may not be a good choice to name as an agent. They often overlook tax laws. Its important to remember that each State’s probate laws and tax laws vary. Further, mixed marriage situations are never a good fit for these programs. Additionally, users may miss powerful opportunities to sheild a child’s inheritance or plan for a special needs child. Finally, there is the issue of liability. Who do you hold accountable if a mistake was made?

In my office alone, I have several consultations per month where I assist clients in backing out of poorly drafted, do-it-yourself estate plans, and into something that makes sense for them and their families. Its very important to remember that there are no one-size-fits-all when it comes to planning one’s estate but that the utmost care should be placed in choosing the right person (Estate Planning or Elder Law Attorney) to help you, and not the right computer program.

Astor Matter Reminds Us that Trustworthiness is Essential When Nominating Substitute Decision Makers

Lately, the matter of Brooke Astor’s estate has been covered in the media. Like many people she had an estate plan in place which included a Durable Power of Attorney and Health Care Proxy, which nominated subsituted decision makers in the event she would lose the capacity to make important financial and/or medical decisions at some point during her elder years. She did not want to burden her family with obtaining a Guardianship and/or Conservatorship through the courts. She did end up suffering from Alzheimer’s disease and her son took over her financial powers. He just didn’t do a very good job…

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated – and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so – as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”