5 VIP To-Dos Before Packing the Suitcase…
According to AAA, approximately 44.2 million people were to travel the weekend before the 2017 Independence Day holiday. Still, Americans are becoming more and more transient: Not just holidays, but graduations, vacations, and family reunions beckon lots of us away from the place we call “home.” With clients who are “snow birds,” non-U.S. citizen spouses, or dual citizenship partners, our firm has a unique perspective to share with you when it comes to protecting your loved ones as you “move freely about the cabin”: Advanced Directives, aka “Powers of Attorney.” Have them. Let your agents and successor agents know you’re travelling and how to contact you, even if you climbing Machu Picchu. Financial and Health Professionals. Copy them. Make sure your banks, brokerage houses, and doctors have copies of your Advanced Directives on file. Children’s Successor Guardians. Name them. Let them know you’re traveling with or without the kids and also how to contact you. If you have kids and are climbing Picchu, carrier pigeons may be an option. Destination Hospitals, Pharmacies, and Emergency Clinics. Know their locations in reference to your accommodations and their rules on treating patients or filling prescriptions for patients outside of their jurisdiction. “Check in” upon your return. Let your \”team\” know they can relax and maybe take a vacation, too. Nobody wants to become seriously ill while on vacation. However, with the right plan in pace and information in the appropriate hands, if you do become ill while travelling, you can focus on becoming better, knowing your trusted fiduciaries have your best interests under control just as you would. Happy, Safe, & Fun Travels!
A Nod to Philosophers and Poets
“Change is the only constant in life.” – Heraclitus This year, 2016, will likely be determined by historians as one of the most politically chaotic in the history of the West. First, there was Brexit; then there was USAmerexit. And regardless of where you stand on either outcome, two things are certain, both: (1) were unfathomably unpredictable; and (2) represented a fundamental recognition of opinion divergence in the representative countries. Whether the diverging opinions are based largely in fact or fake news is debatable, but that the world has and will continue to change is not. So…what to do? To paraphrase the world-renowned mater poet, Maya Angelou: If you don’t like something, then change it; if you can’t change it, then change how you respond to it. Yet, often, people do nothing; they simply accept the change in quiet, unnecessary resignation. As an attorney, it is my duty to consider the pending political climate and respond accordingly by recommending pragmatic planning for changes to current policy that will affect our clients. Yet, changing political climates do not change how we always approach planning for our clients and the question we always consider: What if? Nothing is guaranteed, not good health, not good fortune, nothing except death. So, what if a loved one, who owns a nice home and has a good retirement plan, is diagnosed with a serious, long-term illness that may result in death or permanent disability? What if this kind of emotional, potentially life-changing shift occurs? Your loved one can: Fight the diagnosis aggressively, using all resources at their disposal. Doing so may work, in which case the diagnosis will change. Doing so may not work, but the fight may be a necessary catharsis or expression. Accept the diagnosis and do nothing, which will likely result in long-term and serious anguish for their immediate loved ones and squander precious resources – theirs and yours. Change the way they plan to spend retirement, by establishing a care plan and an estate plan, which will result in long-term peace and benefit for all. Most importantly, providing them with the highest quality of life possible under the circumstances. Our office has witnessed all 3 of the above scenarios and cannot emphasize how unnecessary the heartbreak – or family feuds – that inertia in cases such as the above is. The term \’chaos\’ comes from the Greek word \’kaos\’, which meant a void or an abyss; now it means utter disorder. Presuming Heraclitus’ was correct and that change is the only constant, just because we cannot predict what the change will be and the consequential effects, does not mean we cannot appropriately adjust our attitudes, plan for those effects, and avoid chaos, whether in the form of an abyss or utter disorder. Thank you, Maya Angelou and Heraclitus.
Healthcare Privacy and the \”Ick!\” Factor
In our most recent newsletter, we shared with readers the importance of maintaining privacy when preparing advanced directives. Folks tend to have no problem with understanding privacy and money, but when it comes to privacy and health, the same deference is often not given. Still, if we’re fortunate, many of us will live a long time. Given that good fortune, it’s also likely that some of that living will entail having to overcome or manage illnesses or health challenges we would rather loved ones not know about. Moreover, if the illness is irrelevant with respect to addressing our current medical issue, there’s no reason for them to know. Yet, how often do individuals find themselves in emergency rooms, signing paperwork, unaware that all of their medical history may be released to the person they designate while they\’re sitting in excruciating pain? Right. Not cool. This particular potential angst can be avoided with a few steps and considerations: Ensuring the advanced directives for healthcare are tailored uniquely to the needs of the current situation. Ensuring that the directives – power of attorney for healthcare, mental health treatment declaration, and HIPAA forms – work in tandem with each other. Thinking about not just who should receive the information but when the information should be released. For example, do our parents really need to know about the yeast infection we were treated for a few months ago when we’re in the ER because of appendicitis? Probably not. ***Disclaimer: This is not to say that we, lawyers, know how medical treatment is determined, especially when Botox, the stuff to make wrinkles disappear is now purported to calm muscle spasms. No, we are not doctors licensed to make treatment decisions.*** Conversely, if you’re incapacitated and feverish and the doctors can’t determine the cause, then a loved one may, in fact, need your complete medical history in order to make a fully-informed decision about your medical treatment. Thus, we are brought back to the issue of who should be our agent. In this situation, perhaps instead of a parent being designated an agent, because of the information \”ick factor,\” designating a close friend would be more advisable. Finally, but equally important is that we make these decisions are made before a visit to the ER is even contemplated, let alone needed.
Zen and the Art of Dying Well (Video)
What if I\’m Neither: Practical Planning Tips for Transgender and Queer Persons
Welcome to our 4th segment in our series on estate planning for transgender and queer persons. When planning for the \”T\” & \”Q\” of the LGBTQ community, attorneys must understand the overlapping factors and relationships between retirement planning, estate planning, gender definitions, and legal interpretation. While we can control some factors, such as estate planning and applicable definitions, other factors, such as the laws governing retirement plans and statutory definitions of gender, are typically out of our control. Additionally, estate-planning attorneys should consider planning in the context of Windsor for transgender and queer persons as we do for all clients: examining financial and non-financial issues. Yet, most attorneys also agree that non-financial issues are usually the more challenging part of planning. The 3 categories generally considered in non-financial estate planning conversations are: (1) the client’s health and the health of close family members and loved ones; (2) family dynamics; and (3) lifestyle and retirement goals. This article focuses on health and issues attorneys face with healthcare Advanced Directives. Good health and healthcare is important to everyone; transgender and queer persons may have more or less issues and some of their issues are different. So, this issue may or may not be important, and is only one of many for transgender and queer persons. Assessing a client’s health for purposes of estate planning includes, but is not limited to, issues surrounding chronic or terminal illness. For transgender and queer persons, we should consider the implications of sexual reconstruction and potential related matters, e.g., whether our client has or had a therapist. All of these issues should be addressed in our clients’ Advanced Directives. Other than certified copies of vital records, Advanced Directives are probably the most important documents a person can have during their lifetime. Additionally, like lesbian, gay, or bigender persons who are unmarried, transgender and queer persons generally need more than a basic power of attorney for healthcare and a living will and even if married. Advanced Directives should include: 1. Illinois Statutory Power of Attorney for Health Care; 2. Illinois Statutory Power of Attorney for Property 3. HIPAA forms 1 and 2 4. Illinois Mental Health Treatment Declaration 5. Hospital Visitation Authorization form 6. Illinois Living Will 7. Illinois Department of Health DNR-POLST To be clear, a person’s sexual physiology is generally irrelevant for purposes of protecting a transgender or queer person’s interests. What is relevant and most important is how that person identifies on the societal gender scale. What is also relevant are the facts as that person wants them communicated, how and when the facts should be communicated, to whom those facts must be communicated, and that those facts are accurately and legally. The Illinois Power of Attorney Act changed substantially last year, and the changes went into effect January 1, 2015. The changes provide individuals with more options regarding the authority they grant to their agents. Yet, more options also requires the need for more information on the part of the principal, which is why we do not recommend individuals completing this form without the assistance of an attorney. The issues to consider in the new Illinois Power of Attorney for Healthcare form cover 5 pages of questions whose considerations could result in a disastrous miscommunication of facts if not done in precise legal context. Again, before addressing financial matters, especially for transgender and queer persons, estate-planning attorneys must ensure that carefully prepared Advanced Directives are in place. Otherwise, the wills and trusts could easily be contested and nullified. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4 | Part 5
Don\’t Try This at Home…Though the Law Says Differently
On September 24, 2014, the Illinois legislature enacted an amendment to the Illinois Power of Attorney Act. The Act was changed to “simplify” the healthcare power of attorney form. Estate planning attorneys in Illinois have been watching this legislation for a while, hoping that it would die. Unfortunately, it lives and the consequences we foresee are anything but simple. In fact, it looks like our legislature gave our citizens an early Halloween scare. The problem is that this can produce genuinely monstrous results: No standard form is required. So in medical emergencies, doctors must use their own judgment about legal forms. Huh? The notice page that makes the suggested format legal is FIVE PAGES long, which includes a litany of questions users are to ask themselves and presumably include answers to on their healthcare power of attorney “form.” Yeah, right. The form you use can be “included” or “combined” with the statutory property power of attorney. Doing so will allow your bankers to read all about your health concerns and your doctors can do the same with issues concerning your finances. Did our legislature forget about HIPAA? The changes removes actual provisions regarding choice of agent…OK…so that’s a tad misleading – that guidance is somewhere in that FIVE PAGE notice. What is optional in the form of your choosing is selecting quality of life over length of live, with some mention about pain. The changes remove language from the suggested format that reflects actual U.S. congressional privacy laws for medical practitioners and third parties. This language is now placed in the statute. Presumably, users will review the Illinois Power of Attorney Act, understand it, then read FIVE PAGES of notice, understand that notice, and create this legally sound, uniquely tailored form. Yeah, right. The form also provides that successor agents are “optional.” Not providing successors has always been optional, lawyers just didn\’t like saying so. We don\’t like telling folks about that particular option because not providing successor agents is tantamount to driving 70 MPH on a busy highway with no seat belt or airbags. Forget Frankenstein or Freddie Krueger, the new changes to the Illinois Power of Attorney Act are sufficiently scary and worse – they\’re REAL.
Jennifer\’s Story – A Fiduciary\’s Tale, Part 2
If you recall from Jennifer’s Story Part 1, Jennifer’s parents, Bill and Carla, were in a terrible car accident but had healthcare powers of attorney on file with their primary hospital and had designated each other as primary agents, and then Jennifer as the tertiary successor agent. Yet, no agent was listed as a back-up for Jennifer who was unavailable at the time of the accident. Bill and Carla were taken to the nearest hospital and were in critical condition upon arrival. Emergency measures had to be instituted immediately. Fortunately, Bill had his cardiologist’s card in his wallet. Also, Carla’s primary care doctor practiced in the same hospital as Bill’s cardiologist. However, both doctor’s were not in the hospital during the time of the accident; so they were being paged. Jennifer’s estranged brother, Alex, learned about the accident from his grandmother and went to the hospital post-haste. Accordingly, the hospital, when faced with an emergency where the agent is incapacitated and the successor agent is unavailable, followed its standard policy and began consulting with the “next of kin,” Alex. The doctor described the situation to Alex and the fact that Bill probably had a heart condition. Alex told them to do whatever they thought was best. This was 30 minutes before Jen’s arrival. When Jen entered the ER, she came upon the doctor explaining to Alex that the medication initially administered to Bill caused a severe reaction and, consequently, more emergency steps were needed to arrest the seizure. The seizure had subsided and Bill’s medical records had also arrived. However, damage to Bill’s heart was a great likelihood, as his blood pressure skyrocketed before and during the seizure. Furthermore, the seizure had made the overall stability of his condition much worse. Jen knew that certain medications would trigger this seizure and the information was, in fact, on his healthcare power of attorney. However, this was an emergency. Still, what if her father doesn’t fully recover? Who is responsible? Jen is about to ask and learn… Stay tuned… Jennifer\’s Story, A Fiduciary\’s Tale, Part 1 | 2 | 3
1 Easy Best Practice to Execute before the New Year
As we continue reviewing estate planning fundamentals, let’s consider last week’s Best Practices Estate Planning tip posted on Facebook: “Every adult, regardless of age and income level, needs a healthcare power of attorney.” Young adults, and even their parents, may think this is going overboard, especially if they live at home. Yet, an adult with capacity has the right to make healthcare decisions on his or her own and also has a right of privacy regarding those healthcare decisions and his or her medical information. Recently, the Health Insurance Portability and Accountability Act (HIPAA) was revised, increasing the privacy guards around the release of medical records and, thus, making it much more difficult for parents or next of kin to obtain this information and, especially to make medical decisions for adult children, without the requisite authority. Human beings experience a myriad of conditions and ailments, some of which we do not want our parents to know about, some of which we only want our parents to know about. Conversely, parents should share important medical history with children, so that children are well-informed about potential conditions that they or their children could experience as a result of inherited genes. Sometimes we don’t know about an inherited medical condition until an accident occurs. If, however, Mom is in an accident and hasn’t designated an adult child a Personal Representative on the HIPAA form, her adult child may not learn this important information. Like the property power of attorney, the healthcare power of attorney is a critical document for single parents with minor children. A minor child cannot be a healthcare power of attorney agent or a HIPAA personal representative and, if a minor is one’s only next of kin, then the document is even more important. Also similar to the property power of attorney, the agent’s authority for a healthcare power of attorney does not have to be effective immediately. However, language should consider emergency situations. Finally, if you’re considering separation or divorce, you should seriously consider executing powers of attorney that designate someone other than your spouse as the agent and personal representative. Do you really want someone who is going to be an ex-spouse to have the authority to “pull the plug”? So to round out the knowledge and authority needed for minimum estate planning protection, be sure to start the New Year with your property and healthcare power of attorney signed and tucked away.
4 Key Concerns on Estate Planning for Disabled Children
A number of articles in The Shark Free Zone address the bad idea of designating a minor as a primary beneficiary. Single parents especially struggle with this issue, which is why “it takes a village,” is more than political rhetoric. Another issue parents and family members struggle with is the unfortunate circumstance of managing the car of a disabled child or loved one. Yet, it is even more critical to plan for unfortunate events when you are the caregiver of a disabled person. As usual, examples often help distinguish bad planning from poor planning but this time we’ll just look at a scenario and the resulting considerations. Twenty years ago, Kelly and Sean’s daughter, Carrie was born mentally and physically disabled. As a result, Kelly and Sean decided that Kelly would remain at home to care for Carrie and the family would depend on Sean’s paycheck and Carrie’s Social Security Disability Income (“SSDI”). About a month ago, Kelly and Carrie were involved in a car accident and ended up with a settlement award of $50,000 after medical expenses were paid. Fortunately, neither Kelly nor Carrie was severely injured but the incident shook Kelly considerably. So she and Sean finally had the “what if” discussion about the possibility of something tragic happening to one or both of them. If one or both of them died, who would care for Carrie and what would that look like? Well, Kelly and Sean have several issues to consider, including: Guardianship v. Powers of Attorney. Carrie is an adult and, in Illinois, obtaining guardianship for a disabled adult is a lengthy and costly process. To avoid that process, powers of attorney for Carrie might be useful. The question of usefulness hinges on the severity of Carrie’s mental disability with respect to legal capacity needed to grant authority provided in powers of attorney. Adverse Implications of Government Assistance. Irrespective of who dies, if sufficient means are not available to ensure Carrie’s basic needs – food, shelter, clothing, and medical care – are met during the remainder of her life, she may need additional government assistance, such as Medicaid. However, when someone on Medicaid receives an inheritance, they may become temporarily ineligible for Medicaid. So particular testamentary planning, such as “special needs trusts,” may be needed. Sufficient Life Insurance. If Sean passes away, the question is then, how much of a death benefit is needed. Also, if Kelly predeceased Sean, who would be the contingent beneficiary able to act on Carrie’s behalf. Appropriate Fiduciaries. If both Kelly and Sean die, the question again is who will be able to financially and compassionately manage Carrie’s estate and how would that estate be structured? Caring for a child with mental or physical challenges has at least one commonality with caring for a child with no challenges: the need for a careful, caring, and protective plan in the event the parent is no longer able to provide needed care because the ability or inability of our loved ones doesn\’t change the fact that they are our loved ones.
Women & Obamacare: It Hurts Not to Know
Recently, I attended a great program on women’s healthcare. The discussion included how the Affordable Care Act would affect our healthcare and the decisions we made. So please read this article and share it with all the women you know. Thank you, Affinity Community Services for hosting, Kathy Waligora of the Illinois Maternal and Child Health Coalition, the Chicago Women’s Health Center (CWHC), and Dr. Theresa Jones for sharing such valuable information. Resources to the topics are at the end of this article. Because estate planning and financial planning are closely related, health insurance is a key component to successful estate planning. Without appropriate health insurance, everything you own is at risk of loss … to a hospital bill or to long-term care. So no estate planning involving asset distribution will matter because the hospital bill or caregiving expenses will have created a gaping doughnut of an estate for you. The exponential increase of healthcare costs over the last couple of decades is one reason why fewer and fewer individuals and families considered estate planning: with little or no insurance, planning for the transfer of assets would be an exercise in futility. However, that risk for millions has been and is being mitigated by the Affordable Care Act (“ACA” or “Obamacare”). Before the ACA, 40 million Americans had no health insurance and millions of children would never be able to obtain it because of pre-existing conditions. In 2010, when the ACA passed, the number of uninsured Americans were reduced by 10%. And though the ACA has come under intense fire, by 2014, millions more of Americans and small businesses will receive 50% of credits to help offset the cost of coverage. Additionally, the cost of coverage for women will be fair. Until the ACA was passed, women were made to pay more for healthcare insurance than men and, unlike what most individuals thought, it was not because most women could become pregnant. So why were women paying more for health insurance? That’s a good question that insurance companies have yet to provide an answer for. But they won’t have to because on January 1, 2014, gender will be eliminated as a criteria for determining health insurance costs. Moreover, preventive and wellness services, especially for women, that were not available in many insurance plans will be available to women at no cost through the ACA. The critical need for these services is highlighted by the recent news about celebrity Angelina Jolie’s healthcare decisions. Included in the free preventive and wellness services mandated by the ACA are: BRCA counseling about genetic testing for women who at high risk, Anemia screening for pregnant women, Cervical cancer screening, Domestic and interpersonal violence screening and counselling, Folic acid supplements for women who could become pregnant, Osteoporosis screening for women over 60, and Well-woman visits. The ACA mandates these services included in 22 preventive services because legislators and the current administration recognizes that preventive maintenance and reformed and regulated healthcare for all Americans ultimately reduces healthcare costs across the board for our country, community, and loved ones. Another important feature of the ACA is Medicaid reform. However, states must agree to take advantage of the new Medicaid rules. If Illinois agreed to embrace the rules, it could man billions of dollars and thousands of jobs. However, the 3.8% surtax on families with household incomes of $200,000 or more has fueled the uproar mentioned earlier. This could result in these households being taxed at a marginal rate of near 45-50% and nobody likes to pay taxes. Still, Illinois Senate Bill 26 (SB 26) is pending with regard to this question. As of 5/21 the bill was passed, after several notes, to the House Committee. As I said at the top, information about our healthcare and how to use that information is too important – not just to us but also to our families – not to share, so please pay this forward and let women (and men) know that \”affordable healthcare is available to you.\” Helpful Resources Illinois Congressional Representatives, http://www.ilga.gov/house/ Health Insurance 101, http://101.communitycatalyst.org/aca_provisions/ Illinois Maternal and Child Health Coalition, http://www.ilmaternal.org/