Put the Oxygen Mask Over Your Own Face First! Choosing a Healthcare Proxy!

Why choosing a healthcare proxy is a far more important decision than who will receive assets at the time of your client’s death.

The most important focus of estate planning should not be what happens when your client dies. It should be what happens if that client loses the ability to make their own decisions. Make sure your client has put in place the legal mechanisms so that they can be taken care of in the way the client desires. It is important we all remember what the flight attendant says every time you board a plane — if the cabin pressure changes and the oxygen mask falls down, place the mask over your own face first. Similarly, it is only when your clients place their masks over their own faces, that they will have the strength to protect others. In other words, your clients should protect themselves first.

A Healthcare Proxy is a document in which your client gives the authority to an agent to make medical care decisions if they become unable to make them. The document can authorize everything — including minor and routine medical involvement — and can give the agent access to all the client’s medical records. It can authorize someone to supervise your client’s care if they are incapacitated, to consent to have them undergo certain types of treatment or to have them withdraw from treatment; to make hospital or nursing-care arrangements; and to employ or discharge caregivers. It can also empower the agent to make such major decisions as whether or not to terminate your client’s life.

Under federal law, only one person at a time can be named as healthcare agent, but a Healthcare Proxy can name a succession of people as alternatives. This is done so that someone else can take over if, for instance, both spouses are in the same car crash and neither one of them is in a condition to make medical decisions. A copy of the Healthcare Proxy is given to the primary care physician and becomes part of the medical record.

As with a financial Durable Power of Attorney, in the healthcare area, couples usually designate each other to make medical-care decisions and list their children as successor agents. For clients without spouses or children (or who are looking for alternative possibilities), I stress that their healthcare agent be someone they trust, who shares their value system, who is willing to perform the task and who has a clear understanding of what your clients’ preferences are.

It is prudent to update this document regularly and, when it is updated, to make sure that the most recent contact information for those who have been designated to make healthcare decisions (including all telephone numbers and cell phone numbers) are current. The document must be updated if the Healthcare Proxy was executed prior to The Health Insurance Portability and Accountability Act of 1996 (known as HIPPA). Under HIPPA, if your client does not expressly waive their right to privacy in writing, hospitals and physicians do not have the legal right to speak with the healthcare agent or to release medical information to that person.

Choosing a Healthcare Agent

This important person may have different titles in different states (such as “healthcare agent,” “health proxy,” “patient advocate,” “attorney-in-fact,” “healthcare representative” or “health surrogate”), but the responsibilities are the same. The official requirements for healthcare agents vary from state to state, but most states simply specify that the person be an adult (over 18) and must be someone who does not work for your client’s healthcare provider or for an adult-care facility in which your client is residing.

It is good to designate both a healthcare agent and a successor agent (choice #1 and choice # 2), in case your client needs help at a time when the agent they have chosen is not available. Your client has to decide which of their children to choose and if they have no spouse or children, which friend or relative to choose.

In order for your clients to choose a healthcare agent wisely, it would be helpful for them to establish a basis for evaluating potential candidates. That evaluation should include the following criteria:

  1. Religious beliefs: Since the concept of withholding artificial-life supports runs contrary to the teachings of several religions — most notably the Catholic Church — it is helpful to find a healthcare agent who shares your client’s religious beliefs and their position on right-to-die issues.
  2. Willingness to take on this task.
  3. Strength to act on your client’s wishes and speak out on their behalf (even if faced with doctors, institutions or family members who disagree).
  4. Communication: They are comfortable speaking with your client about sensitive issues and capable of listening to and absorbing what it is that your client wants.
  5. Separation: This is a person who can differentiate between their feelings and your client’s and is able to do what your client wants done.
  6. Proximity: This is someone who either lives close or could travel quickly to be there when needed.
  7. Availability: This person is likely to be accessible and capable of performing tasks well into the future.
  8. Personal Understanding: The person knows your client well enough to intuit what is important to them.
  9. Negotiation skills: The person can mediate conflicts between family members, friends and medical personnel.

Figuring Out What You Want
The following questions, which I suggest you pose to your clients, are designed to help your client know themselves and to form a basis for discussion with the person your client chooses to execute their healthcare power of attorney:

  1. The Pleasures of Health: How essential are these capabilities to your happiness? (i.e. are they vital, important, mildly important or not important):
    1. Walking
    2. Enjoying the outdoors
    3. Eating, tasting
    4. Drinking
    5. Reading
    6. Attending religious services
    7. Listening to music
    8. Watching television
    9. Avoiding pain and discomfort
    10. Being with loved ones
    11. Touching
    12. Being self-sufficient
  1. Fear Factors: What are your biggest concerns about the end of your life?
  2. Spirituality: How much of your comfort and support comes from religion? From personal prayer? From interaction with clergy?
  3. End of life: If you had the power to decide, what would the last day of your life be like? Where would you be? With whom? What would you be doing? What would your final words be?
  4. Assistance Preferences Worksheet: It is useful to discuss with your healthcare agent (and family members as well) the types of assistance you might want, should you need help and to revisit this issue from time to time, because your preferences could very well change. Looking at each of the different scenarios spelled out below, think through what your preferences would be by asking yourself the following questions:
    1. Would I still want to live at home?
    2. Would I want caregivers hired to help me out in my home?
    3. Would I want to be taken to a rehab or assisted-living center?
    4. Would I want family members to care for me?
    5. Would I want to live with one of my children?
    6. Would I want one of my children or a relative to live with me?
    7. Would I want my healthcare agent to make these decisions for me?
    8. Would my answers differ if my spouse were still living at home?
If you were unable to drive a car ___
If you were unable to climb stairs ___
If physical problems prevented you from being able to dress yourself ___
If you had to use a wheelchair because you were no longer able to walk __
If you were unable to leave your home ___
If your vision was seriously impaired ____
If your hearing was seriously impaired ___
If you needed kidney dialysis ___
If you needed chemotherapy ____
If you were in physical discomfort most of the time ___
If you could no longer control your bladder ___
If you could no longer control your bowels ___
If you could not think clearly ___

Conclusion

The more your clients take the time now not only to think through who they wish to choose as a Healthcare Proxy, but also how they would want various future scenarios to be addressed by that person, the more likely their wishes will be honored in the future.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently announced the release of an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  Annino’s book is an exhortation, resource and trusted companion for women in all facets of life.  To purchase the book visit:  http://amzn.to/hOHuEV or for more about Annino, visit: www.patriciaannino.com

 

Are Caregiving Agreements a Viable Estate Planning Consideration?

The way we look at estate planning continues to change and evolve.  A recent article in the money section at USNews.com explained the “5 Steps to a Family Caregiving Agreement” (link to article below) in easy-to-understand details that made me think of ways to incorporate such an agreement into the Estate planning process.

While it would still be difficult to determine at an earlier age, when I suggest people begin addressing needs such as a Will, Health Care Directives, Trusts and Durable Powers of Attorney, long-term care, much of which is managed and supported by family, has become more the norm.

It makes perfect sense that we should consider the costs associated with long-term care, especially those that are currently handled by family members who are uncompensated.  Establishing such an agreement, in writing, will assist in managing estate funds by developing such a financial plan.

The most difficult part will be in creating generalized verbiage to protect both parties, and maintain the best possible care for however long care is needed.

What do you think about creating a Family Caregiving Agreement?  Will this be a viable addition to your estate planning documents?  I value your insights and contributions to the discussion.  Please submit your questions and responses below on this important topic.

Read the USNews Article here:   http://money.usnews.com/money/blogs/the-best-life/2011/09/06/5-steps-to-a-family-caregiving-agreement

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently announced the release of an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  Annino’s book is an exhortation, resource and trusted companion for women in all facets of life.  To purchase the book visit:  http://amzn.to/hOHuEV or for more about Annino, visit: www.patriciaannino.com

 

Estate Planning at All Levels of Wealth

Don’t the Wealthy Deserve As Much Attention to Competence Planning As Those Who Seek Medicaid Planning?

One only has to read news stories like those about Doris Duke, Brooke Astor and Lilianne Bettencourt to understand that incompetence planning should be as important to those with financial means as it is to those without.  In fact, as the population ages and medical science advances, “Estate Planning” may need a new name, one that has a direct correlation to protecting oneself and one’s estate while still  alive.  The questions to ask are not only “Who will you leave your assets to?”  and “What will the estate tax consequences be?” but also “How will you protect yourself so that when you are no longer able to make your own medical and financial decisions, your wishes concerning your care and your assets will be implemented the way you intend them to be?”

Estate planning as we know it today evolved generations ago when people lived, became ill and died. What mattered was planning for death.  But now planning for the middle and upper classes, including the very wealthy, also needs to focus on planning for disability and incompetence in the same way that Medicaid planning and planning to preserve assets for the elderly on the lower end of the asset/income spectrum has evolved.

Questions and issues that need more attention from estate planning practitioners:  

In many estate plans, the three documents that affect the client’s issues are the living will and/or health care proxy, the durable power of attorney and the living, revocable trust. For the most part, the provisions in these documents are boilerplate. Very few clients have thought through how the documents work together and whether or not conflicts might arise. Therefore, estate planning practitioners should encourage their clients to consider the following questions:

Who is in charge of physical care? Who is in charge of financial assets? Are they different people or institutions? Is there any coordination between them? What is the system that fosters that coordination? How is the person designated to be in charge of the client’s physical care guaranteed payment for the choices that are made by either the attorney in fact, under the durable power of attorney or the trustee of the trust?  What if there is conflict? For example, what if the person in charge of care chooses at home care but has no authority over the money or vice versa? What if the person in charge of the money also stands to inherit when the client dies?

How can the client’s wishes concerning care of person and care of assets be made binding and coordinated? Should the client prepare a written memorandum which sets forth what s/he would want to see happen and how the care should be coordinated? This type of memorandum could be updated annually as life evolves and could play an important part in where the person lives, on what s/he expends money and what the standard of care is if s/he were to become disabled or incapacitated. Should there be a mechanism by which annual financial and physical care reports must be provided? Should it be mandatory that those who are making the decisions about physical care meet several times a year with those who are making the financial decisions?

Should there be life time “in terrorem clauses”? In other words, if the care that was expected is not received, or if funds were not paid for the care that was requested, is there a forfeiture of inheritance if the person making those decisions also stands to receive assets?  Could there be provisions drafted for trustee surcharge or penalties if the client’s intent was not carried out? Should there be a cause of action for tortuous interference with an inheritance?

The accounting provisions should not be standard boilerplate clauses. Care should also be taken as to whom the accounting should be made if the client is no longer able to review the transactions. The accounting clause is a standard clause in many documents. Perhaps it would be interesting to mandate accountings to other family members or friends who could review the actions taken to date and who have standing to object to them.  Should there be a clause in the trust which triggers irrevocability? What if that trigger is not just by a physician, but by a panel of people selected and well known to the client?

Next week, check back for the rest of this post – including…to what extent should planning be allowed after a person is clearly disabled or incapacitated?

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  For more visit:  www.patriciaannino.com

 

 

Women & Money: 9 Strategies for Unmarried Partners

Many times I’ve had unmarried partners (usually of the same sex)tell me that they were concerned that when a partner died his or her family would “come out of the woodwork” and challenge the estate to claim benefits.

On those occasions it is very important to avoid probate. It may also be advisable to include what is now known as a “Sinatra” clause, after Frank Sinatra who included one in his will. The Sinatra Clause specifies that anyone who challenges the provisions of the will, any trust that the decedent established or the administration of the estate forfeits any benefits that person would have otherwise received. 

Frequently a will or trust will mandate that a bequest will be given to a child and if the child is not living then to that child’s children. When the Sinatra clause is included I think it is important to also make sure that the challenging child beneficiary and his children are excluded too. Otherwise the child beneficiary may launch a fight, be dropped from the benefits list because of the Sinatra clause, only to have his children receive the benefits (getting in “the back door”).

I have also decided – from years of experience – that if a decision is made to employ the Sinatra clause, it’s a good idea to leave the person who is going to be disinherited something that they consider worthwhile so that the decision to fight or not to fight is made after deliberation – not because of spite.

If there is something you can offer that the person would regret losing, they will usually think twice before a fight.

Have you executed a health care proxy? Is a successor named?

  1. Have you executed a durable power of attorney? Is a successor named?
  2. Have you thought about drafting a “living together” agreement?
  3. Have you executed a Will? And, if appropriate a living trust?
  4. Have you reviewed with your advisors the tax consequences of leaving your assets to your partner? Have you reviewed with your advisors the tax consequences of your receipt of assets your partner intends to leave you?
  5. Have you explored long term care insurance?
  6. Do you know what assets you will be able to access if your significant other becomes disabled or incapacitated?
  7. What about your debt – have you both reviewed how that will be handled at the first death?
  8. Have you both made funeral and burial arrangements and put them in writing?

Patricia Annino is a nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  For more visit:  www.patriciaannino.com



8 Strategies for Caring for Your Elderly Parents

Members of more than one quarter of all families in the United States today are involved in some way in the care of their elderly parents. Taking steps to prepare for your parents’ future needs is not only important for your parents. It is important for you. 

  1. Make sure they have signed a Health Care Proxy and a Durable Power of Attorney
  2. Have a family discussion about care long before it is necessary to act. Explore the role the family will play. Will they want to stay at home? Move in with family members? Enter a residential facility? Discuss who will be sharing in the care giving responsibilities.
  3. Assess your parent’s finances and their own ability to pay for care. Obtain a listing of their assets, liabilities, and income (including Social Security payments, other retirement income and the account name and numbers into which they are deposited).
  4. Evaluate your parent’s medical and personal needs.
  5. Know who the doctor is and how to contact him or her. Determine if a geriatric assessment is necessary. Find out what medications are currently being taken, dosage and side effects.
  6. Find competent medical and geriatric care givers.
  7. Review medical coverage, prescription plans, Medicare, Medigap, Medicaid options.
  8. Explore the purchase of long term care policies.

 It is very important to discuss estate planning with your parents while they are both mentally and physically healthy. If they wait to make arrangements until after one of them is incapacitated in some way, their options will be seriously limited.

Patricia Annino is a nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  For more visit:  www.patriciaannino.com

Myth #2 – Designating a Healthcare Agent

Myth 2: Estate Planning is Only For Old People

Reason to Plan: Estate Planning Should Begin When You Are Young

Once you reach the age of majority, even if you do not have any assets, you should execute a health care proxy or health care durable power of attorney.  In that document you may designate one person (and successors) to make your medical care decisions if you are unable to do so.  You can revoke the document during your lifetime.  No doubt Terry Schiavo at her young age she would experience serious medical issues.  Because she had not expressed her intent in writing Florida law named her husband as her agent.  Perhaps her parents would have had some comfort if they knew that she had selected him to make those decisions herself.

Designating a health care agent is also critical in a second marriage situation – it is normal for an adult child and a second spouse to feel that making the health care decision for the parent/spouse is their responsibility – it is not fair to put them in the position after a crisis to negotiate that out – the person who should make that decision is you.  If you are in a relationship with someone and not married that person has no legal standing to make your medical care decisions for you and in some states even to visit you in the hospital.  Executing a health care proxy or health care durable power of attorney can grant the person the legal authority to visit you and to make those decisions.  It is important that you write down the phone number of the health care agent in the document – after all if you are in an accident and it is a life threatening situation the health care professionals will not write-they will want to call and immediately discuss the situation with the named agent. 

It is also important to tell your health care agent that you have named him or her to serve.

Give a copy of the document to your primary care physician and keep a copy of it with your passport when traveling.

Patricia M. Annino, Esquire, is the author of the highly acclaimed book, Cracking the $$ Code: What Successful Men Know And You Don’t (Yet). Patricia is in demand nationally as a speaker for womens’ organizations on assorted topics.  Patricia works with organizations and women looking to educate and empower them to plan and work smarter with their finances and estates.  For more information visit:  www.patriciaannino.com

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