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.
Jennifer\’s Story – A Fiduciary\’s Tale, Part 3
If you’ve been following Jen’s story, you know that Bill’s, her father, condition was made worse by secondary emergency procedures instituted upon Alex’s, Jen’s brother, instructions to the ER doctors. This was an emergency; Jen was 30 minutes away; and the records were 10 minutes from being received by the ER. When the records arrived, it was clear from all of the advanced directives that Alex was not considered a fiduciary or personal representative. He was not to be given any information whatsoever. And as mentioned in the previous article, the information needed to prevent the complication that Bill suffered arrived 10 minutes after Alex had given the doctors the green light. In this case, because there was no third back-up to Jen and no way to contact her, the secondary steps taken could not have been avoided. The doctors proceeded with their hospital’s policy and that may not have been avoided even if Alex said he wasn’t a fiduciary. In emergencies, the difference between life and death can be seconds sometimes. So if Bill doesn’t fully recover or recover at all, the ultimate responsibility for his disability or death will likely sit with Bill for not naming a third back-up. The guilt will, however, rest heavily on Jen and possibly Alex. However, the doctor who spoke with Alex isn’t completely exonerated. Once the doctor saw who was designated on the advanced directives, which included the HIPAA forms, to receive Bill and Carla’s personal health information, the doctor should not have had any further conversation about Bill’s condition with Alex. Nevertheless, he continued speaking with Alex and sharing Bill’s medical history, contrary to law. Privacy provisions under HIPAA prohibit sharing personal health information with anyone, even next of kin, unless the person is designated as a personal representative on the form. Needless to say, Jen became even more distraught when she spoke with her attorney. Now, Alex has faded into the ER waiting room background and Jen is visiting with Carla, whose condition has improved to stable. Jen can’t tell Carla about Bill though and is contemplating the worst case scenario for Bill. Still, as Jen sits quietly while Carla sleeps, Jen reviews one document that provides a sliver of peace of mind at least for her parents, though the doctors probably won’t understand. But they don’t have to; families have their own overall personalities as these doctors will find out and the law is the law. More to come… Jen\’s Story – A Fiduciary\’s Tale, Part 1 | 2 | 3
Take 5: Planning for Parents with Jazz
Today, I was listening to one of my mother’s favorite tunes, “Lake Shore Drive,” by the late Art Porter, Jr. Enjoying the fact that she so loves this great sax melody reminded me of a client who recently came into my office. As we talked I was struck again by the fact that if it were not for the sacrifices made by parents, many of us would not have the good fortunes that we have today. Occasionally, individuals who understand this honour the sentiment by taking it to the next level with action. So listening today, I decided I’d pay it forward by providing 5 pieces of information you should have as you plan for your parents. The difficult conversation should, of course, have taken place. After that, you should determine the following: What the estimated amount of need-based government benefits your parents will receive by the time your plan is scheduled to start providing for you or them. This amount will determine how much you can provide for them if their assets plus their benefits is insufficient. Who are their primary physician(s), life insurance agents, and other key contact persons. If you don’t know them already, schedule time to have a small chat with each of these persons and put them on notice that your loved ones are protected not only by their services and products but also by you. Where your parents want to live in the event one or both become infirm and unable to tend to each others\’ basic needs, e.g., proper hygiene, nutritional maintenance, and medical treatments. Most folks say “my home,” unlike my mother, who sent me a link to her favourite cruise line. What their retirement and estate plans entail and if these plans reflect their current family and financial statuses. CAUTION! Sometimes parents don’t provide equally for siblings. This isn’t a smart parental move irrespective of the motivation, but it happens. So if you’re getting pushback, this may be the reason and may be a good time to try to avert a potential family feud. The nuances of how they handle finances. This may change over time but generally people are consistent in the way they manage their personal finances. For example, some folks are uncomfortable with less than $200 in their wallet; some withdraw cash from the bank at the beginning of the week that’s to last them until the next week; and some older individuals go a few times a week just because it gets them moving and, if it’s a local community branch, they get to see familiar faces. If you plan to provide for your parents and discuss these matters now, all parties will be more comfortable and less stressed-out when the time comes for you to supplement or provide them with income. Even if you aren’t sure that you’ll be able to assist your parents, this information is still valuable in case they just need your help.* Just like us, our elders generally relish their independence, so to lose some or all of that freedom can be kinda earth-shattering. If a loved one could make a possibly traumatizing situation for you less stressful, wouldn’t you want them to take the necessary steps to do so? I would. So take 5, play a little Art Porter – or The Stones – and sit down and listen, so you can pay it forward in the right key, when the time comes. As always, your thoughts and comments are welcome… *As seen in Crain\’s Chicago Business.
With This Estate Plan, You May Take My Coat
Individuals sometimes ask me, why, if they are not millionaires, do they need an estate plan, ending with something akin to, “I’m not rich; I don’t have anything.” My response is usually the typical T&E (Trusts and Estates) mantra, “You don’t need to be ‘rich” to need an estate plan.” Furthermore, the converse is generally true – the smaller estates need equal, if not more, protection. Moreover, non-millionaire employees are “richer” than they think. Like an IRS person once said, “Stop thinking it’s your money.” So, if you\’ve been steadily employed, don’t think that the federal government sees you as a pauper, irrespective of your current financial woes. Acknowledging that these are horrendous economic times citizens worldwide, I must say that millions are also fortunate. They are employed; have retirement or profit-sharing plans; have life insurance; and they have a house, which may be worth less than what they paid for but they still own a home. My “Who Killed Kenny” winter down coat is worth less than what was paid for it but, considering January in Chicago, it would take a permanent move to my favorite desert oasis to get me to sell that coat. Pardon my slight digression, though I think you got the point: It may feel like you’re managing paycheck-to-paycheck, but even so, you may find solace in the midst of this economic maelstrom. Consider your retirement plan. It may have taken a beating over the summer, like most of our financial accounts. However, you may still be able to use your plan to your advantage in the long-term and/or to your loved ones advantage. The 2 most popular retirement accounts are 401(k)s and Individual Retirement Accounts (IRAs). A 401(k) is typically a qualified plan where your employer matches your contributions. Teachers often have 403(b) accounts that operate in basically the same way as a 401(k). While 401(k) contributions are tax deductible, generally any income earned is taxed on withdrawal. Additionally, once you reach 70 ½, you must make a required minimum distribution (RMD). With a 401(k), your spouse is presumed to be the beneficiary, so if you designate other beneficiaries in your will, your spouse must waive their right to the distribution in order for the other beneficiaries to take. Also, because 401(k) plans are governed by federal law, civil union partners cannot be designated spousal beneficiaries of 401(k) plans. IRAs provide a little more flexibility than 401(k)s, because there is no RMD at any age and withdrawals from Roth IRAs are not taxed. However, the maximum contribution is significantly lower than that of a 401(k) and an IRA account may not even be available if you also have a 401(k). Still, unlike a 401(k), with an IRA, there is no presumption of a spousal beneficiary, so who you names as beneficiary, even if it is your civil union partner or same-gender spouse, is the beneficiary. If that person passes away, then the beneficiary will be the person named next or if there’s no contingent, the distribution will follow the state’s testamentary code. Equally important, you can provide for your grandchildren by creating IRAs for them, so that the distribution that would be made to your children is instead rolled over into accounts for your grandchildren. So before you think you’re “not rich,” consider your retirement plan. Basic it may be, but if properly implemented, it could provide you with comfort like my \”Who Killed Kenny\” coat on those cold, January, Chicago days.
Who Takes the Eggs? ART and Estate Planning Considerations
As technology’s digits crawl through the nooks and crannies of our physical world and cyberspace, the legal consequences and questions emerging keep even us non-IP lawyers quite busy. Considering assisted reproductive technology (\”ART\”), family law was the premier practice area for getting caught in ART\’s web. Few lawyers realized the effects ART would have on estate planning and, even as the effects became clear, only a fraction of states passed laws providing legal guidance. Fortunately, Illinois is a state that considered ART in its laws and included laws for in vitro fertilization in the Parentage Act. Additionally, the Probate Act states that children born after a parent’s death (“posthumous” children) are to be considered having been born during the parent’s lifetime. So, what does all this technolegalese mean? Well, in terms of inheritance and/or estate planning laws, it means conversations should be had between Illinois spouses if conception is a challenge or an impossibility for one or both spouses.* The conversations are necessary because of 2 vital estate planning tools often used by couples, Health Care Powers of Attorney (“HCPOA”) and Property Powers of Attorney (“PPOA”), which can also provide instruction for ART cases. Yes, lawyers love acronyms. In Illinois, a posthumous child born via ART typically emerges in 1 of 3 ways: Use of frozen sperm; Use of a frozen embryo; or Use of a frozen egg. Furthermore, obtaining frozen sperm or eggs may not only occur after incapacity but also may occur after death, which is when estate planning mechanisms are triggered. When creating an estate plan, couples usually consider a bunch of “what ifs,” e.g., “what if I become disabled while we’re still in the “prime” of our lives and haven’t had kids yet?” A HCPOA is a tool that requires making those decisions but, consequently, eases the fears associated with the “what ifs.” Accordingly, when considering ART, a HCPOA could, for example, authorize the implantation of frozen sperm or eggs. Of course, other considerations would naturally follow, such as, how one abled-parent and one disabled parent would raise a child. Still, ART combined with the law creates a reasonable and protected possibility for having a family, when that likelihood, outside of adoption, didn’t exist before. Another equally interesting issue relates to the PPOA. But, you say, “That’s about property.” Yes, it is. In a 1993 California decision, Hecht v. Superior Court, which is used by several states, the Court determined that frozen genetic reproductive material, such as sperm and eggs, is property for the purpose of leaving a gift in a will (aka “devise”). Here, you might think the conversation would be easy – women can leave their eggs to their partners; but, not so fast. What if the eggs are frozen, then the relationship is legally dissolved, the donor spouse remarries, and then passes away? Who gets the eggs if the second spouse doesn’t want any (more) kids? She could disclaim them and pass them to her descendants or siblings; that would be interesting. The future brothers and sisters of the former partner? Should the reproductive material be destroyed? Who do you think should get the eggs? * The term “spouses” and \”partners\” are interchanged in this context because the terms are synonymous in Illinois law.