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

Worcester Estate Planning Attorney: How to Physically and Financially Protect Your Children If Something Happens To You

Parents in Worcester, Massachusetts rely on a lot of outside help when it comes to raising their children.  From family members to school systems to friends who pass on advice and hand-me-downs, it really does take a village to raise a child.  When it comes to estate planning, however, it is up to you to determine what is best for your minor children.

As an estate planning  and guardianship attorney, I recommend that all parents in Worcester who have children under 18 make planning a priority.  No one wants to consider the idea that they will not be able to raise their kids, but the unforeseen does happen.  By putting a plan into place while you are young and healthy, you can help determine your children’s future, even if you aren’t able to play the role in it that you had hoped.

For example, if you were to die or become somehow incapacitated, who would you choose to care for your child or children?  In many cases, the surviving parent is the obvious choice.  But, considering the fact that the family will be going through a particularly difficult time and that the parental responsibilities will now fall to one person, it may be beneficial to go a step further.  To do this, more central Massachusetts families are choosing to create an estate plan that provides for more financial support of both the children and the spouse.  In doing so, that caregiver can be relieved of some of the burden of working and raising the children.

In cases where both parents are killed or where one parent is already absent from the child’s life, setting up a guardianship is a must.  This allows you to determine who in your “village” will be responsible for the continued upbringing of your children.  Your estate plan may offer financial support to this person as well as trusts that the children can access when they reach a certain age.  That said, it is acceptable to place a different person than you named as guardian in charge of financial responsibilities.  An estate planning attorney will walk through the options with you in order to find a solution that best fits your situation.

When it comes to finances, it is also a good idea to consider what kinds of restrictions you might want to place on your children’s access to inheritance.  Some parents make access contingent upon certain goals such as age, education, and behavior.  Simply allowing access to a trust when a child reaches 18 may not always be the best approach due to inexperience and pressure from others.

Again, an estate planning attorney is well versed in the options available to parents who wish to plan for their minor children.  Choosing someone in the Worcester area, like Vickstrom Law, ensures that your estate plan is valid, complete, and meets the criteria of the local courts. For more information, please contact Attorney Kristina Vickstrom.

Photo Credit:  limaoscarjuliet / cc by 2.0

Guardianship Alternative for Minor Children Living With Non-Parent

Occasionally a minor child will end up living with someone else besides his or her parents. This could be temporary, semi-permanent, or permanent. Perhaps the parent is in the military and was called to active duty so the child goes to live with a grandparent. Maybe the parents have a health or substance abuse issues and an aunt/uncle take charge of the child. Or perhaps a child chooses to live with a relative so that they may attend a specific school.

In situations such as those it used to be that in order for the caregiver to have the authority they needed to deal with health care providers, medications, and the school systems, a Guardianship was needed. This process was costly, time consuming, and actually replaced the parent’s rights to make decisions for their children during the time that the guardianship remained in effect. A trip to the Probate Court was needed to initiate and terminate the process.

Currently there is a new law which allows a parent to give a caregiver (the person the child is living with) concurrent authority to make educational and health care decisions for the minor child. The Act Relative To Caregiver Education and Health Care Authorization allows a parent to authorize a person with whom their child is residing to “exercise concurrently the rights and responsibilities, except as prohibited by the parent, that the parent possesses relative to the education and health care of the minor children.”

The parents can specify any actions that the caregiver is not allowed to take, and the parents continue to retain their authority to take any and all actions related to their children’s health care and education. The form only needs to be signed by one parent so it can be used to grant limited powers to “step-parents” who are primarily available during school hours and/or who take the children to their medical appointments. This is a wonderful news for blended families with minor children. The parent’s decision supersedes the caregiver’s decision if there are any disputes. The caregiver signs an acknowledgment that they will not knowingly make any decision that conflicts with the decision of the child’s parent or other legal guardian.

The document remains in effect until the date specified by the parent, not to exceed 2 years and the powers can be changed or amended at any time by the parent. The document should be provided to the child’s school and health care providers.

This new law will go a long way to help those families who need some assistance in caring for their children, without needing a costly and inconvenient visit to the probate court.