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.
National Healthcare Decisions Day is on April 16th, 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.
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.
Some people think that Elder Law and Estate Planning attorneys are only useful further down the road. They think, “I’m healthy. I don’t need to worry about those things now.” Even while you are healthy, there is one document that everyone over the age of 18 should have in place: a Health Care Proxy (HCP). A health care proxy is necessary to ensure that someone, a health care agent, will be available to make medical decisions for you if you are unable to make them on your own because you are incapacitated. Currently, in Worcester County, another form is also worth considering: the Medical Orders for Life-Sustaining Treatment (MOLST) form. This medical order works with the HCP to inform your health care agent and your doctors what you actually want to happen in various circumstances.
In April 2008, the Massachusetts Health Care Quality and Cost Council (MHCQCC) issued its annual report recommending that Massachusetts establish a pilot program to improve communication between patients and clinicians, and other interested parties, regarding end of life treatments. The MHCQCC found that many patients nearing the end of life were unaware of the treatment options available to them, or, if patients had been aware of such treatment options and had discussed them with their doctors previously, nothing was in place to ensure that their preferences were honored. Therefore, the Massachusetts legislature enacted legislation in August 2008 establishing a demonstrative program for the MOLST process in one community in Massachusetts: Worcester. (Yay, Worcester!)
The MOLST form is fairly simple and easy to read; the most difficult part is actually making the decisions and putting them down on paper. The form is only two pages long, and only two sections must be completed in order for the form to be honored. These two sections are Section D (patient information – specifically who is signing the document on behalf of the patient) and Section E (physician information). In Section D, it is possible for the patient, the patient’s health care proxy, or the patient’s guardian to sign on his or her behalf. If a guardian is signing for the patient, the guardian must ensure that s/he has the legal authority under the guardian appointment to do so. This may require consultation with the patient or guardian’s Elder Law attorney.
If any other section of the form is not filled out, the health care agent is not limited in his or her decisions for life-sustaining treatment for the patient. Sections A, B, C, and F ask the difficult questions regarding resuscitation, intubation and ventilation, hospitalization, respiratory support, dialysis support, and artificial nutrition and hydration. It is critical that you speak with a physician before making these decisions so that you fully understand the meanings of the terms used and the potential consequences. Once these sections are filled out, they must be honored by all health care professions in Massachusetts, where clinically appropriate. The MOLST form is different from a Living Will or another document expressing your “final wishes” because it carries more authority and is more likely to be honored. A Living Will or final wishes document is only used by health care professionals to keep your wishes in mind when making decisions about treatment. While the MOLST form is not currently legally binding, health care professionals are strongly encouraged by the state to honor it.
Finally, Section G simply asks for the contact information of the health care agent. There is also room on the form for other treatment preferences, in which you can more clearly articulate your wishes. There is an expectation that the form will be reviewed throughout the patient’s life so that if his or her preferences change, those preferences will still be honored.
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.”
Who do you know that is getting ready to go off to college this fall? Perhaps it’s your own child, a niece/nephew, grandchild, or son/daughter of a friend. Families will soon be shopping for bedding, mini-fridges, Easy Mac, and textbooks. With the myriad of things to be done before the fall, I’ll bet you very few family “to-do” lists include a check off box for Get Junior a Health Care Proxy. This often overlooked necessity is something that should, at the very least, be considered.
When your child turns 18 they are a bona-fide adult and Mom and Dad cannot step in to make medical decisions for their now “adult” children. In Massachusetts, the only document legally recognized to name a substitute decision maker is a Health Care Proxy. However, the overwhelming majority of college students do not have a Health Care Proxy in place.
A Health Care Proxy names someone to make health care decisions for you in the event you are unable to do yourself. So, for example, let’s say that Sally comes down with a bad case of meningitis her freshman year. She deteriorates very quickly and ends up in a near-unconscious state, unable to make or communicate medical decisions. If she had a Health Care Proxy in place naming Mom, Dad, or older sister as her health care agent, they would be able to communicate with Sally’s treating physicians more completely and have legal authority over her health-related decisions.
What if Johnny has a tragic accident on the football field leaving him paralyzed from the neck down? On top of that the doctors say the outlook is grim if Johnny will ever regain mental functioning and is in a permanent, vegetative state on total life support. Without a Health Care Proxy in place, Johnny’s family won’t be allowed to decide the level of support he will receive. Johnny’s family may even be forced to go to the county Probate Court to get a legal guardianship and ask a judge to make any changes to Johnny’s treatment. Most students would rather have a trusted family member make this decision than a total stranger.
It may seem unnecessary to prepare health care documents for someone so young and healthy, unlikely to come down with serious illnesses. However, when accidents happen to young adults, their legal needs are not often protected and important decision can be left up to disinterested parties, limiting close family involvement.
This may be an unsavory topic to discuss with an 18 year old, but very important, especially if your child still wants Mom and Dad helping them handle their affairs until they get older or are married.
Vickstrom Law • Kristina R. Vickstrom, Esq. • 172 Shrewsbury Street • Worcester, MA 01604 508.757.3800 • View Disclaimer.
Vickstrom Law specializes in Estate Planning, Elder Law, Medicaid (MassHealth) Planning & Applications and Probate and Estate Administration and services Central Massachusetts including Worcester County, and Metrowest Middlesex County Boston area including Worcester, Marlborough, Hudson, Leominster, Fitchburg, Shrewsbury, Westborough, Northborough, Southborough, Stow, Bolton, West Boylston, Holden, Sterling, Spencer, Grafton, Brookfield, West Brookfield, and Sturbridge.
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.
Conservatorship, Durable Power of Attorney, Elder Needs, Estate Plan Review, Guardianship, Health Care Proxy, Uncategorized | Kristina | 
May 17, 2012 1:27 pm | 
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