Category Archives: Health Care Proxy/HIPPA

Making the Most Out of Your Power of Attorney

Present and Future Protections Against the Unknown

A Power of Attorney is a legal document in which you grant a selected person or persons the ability to act on your behalf in financial matters. This can include, but is not limited to: signing on your behalf during a sale, accessing your bank account to pay your bills, adjusting your investments, etc. As such, it is an integral part of any estate plan.

Unfortunately, with this important document come some inevitable risks. The selected person or persons will have access to and control over some of your most valuable assets. More importantly, once the access and control is given, they will be able to take actions without obtaining permission or approval; unless and until the document is revoked.

For many this is cause for concern. They worry that they are sacrificing the safety of their present assets for the sake of future protections against incapacity. And, to some extent they are correct. To protect yourself in the future, there is a certain amount of control that must be given up in the present. But, there are several ways to mitigate these risks.

Here are some of the main ways that this can be accomplished:

Select a Power of Attorney that you trust.

It is very important to think long and hard prior to selecting a person or persons as your Power of Attorney (also known as your POA). But, this choice is more than just finding someone that you can trust not to steal your hard earned money. (Though that is important.)

You should be looking for someone that you trust to make financial decisions in the same manner that you would. To do this, you must first carefully consider your beliefs/opinions/values regarding money. Then, attempt to select someone that mirrors those same beliefs/opinions/values in their own life.

It is also important to consider whether or not the POA you select can handle the responsibility of being your Power of Attorney. Handling the finances of another person can be a difficult responsibility that not everyone is capable of taking on. Carefully consider how the POA will balance their own responsibilities with your own. And, whether the POA will know when to seek assistance if the responsibility becomes too great.

Finally, it is important to make changes to your Power of Attorney Document if circumstances change. As time passes, life events may occur that give you reason to change your POA. Do not hesitate to make such changes, as you never know when you will need your Power of Attorney Document

Carefully Crafted Provisions within the Document.

Even when a POA has been carefully selected, your assets may still be vulnerable. The future is unpredictable and the person you once trusted may disappoint you. Therefore, it is important to have your Power of Attorney Document drafted to restrict the actions your POA can take.

One such provision could be a Restriction on Gift Giving. This provision would not allow your POA to make a gift of your assets to themselves. For example, should the POA wish to acquire your property, they would be forced to pay fair market value for it. Another provision could be to restriction the POA from making amendments to your Estate Plan. This could protect your Will and Trust from being amended in a way you would not have wanted.

Not all protective provisions will work in every situation. Carefully discuss your individual circumstances with your Attorney. They will be able to suggest specific provisions that will fit your needs.

Keep the Signed Power of Attorney Locked Away.

If you are still concerned regarding the safety of your assets, it may be an option to sign your Power of Attorney Document but keep it in your possession. As the signed original is required for the POA to act, without it they are powerless. You could then choose when you wish your POA to have access by simply delivering the signed document to them.

It is important to note that this course of action does not come without risk. If need arises for the POA to act, but they do not have access to the signed original, they will be powerless. If the Power of Attorney Document cannot be located or the POA does not know the document exists, it could then become necessary to petition the court for the authority to act on your behalf. A court petition could be a lengthy and costly procedure. And, it could ultimately result in a POA being selected that you would not have appointed.

Consider a Limited Power of Attorney.

This may be a good option for you if you have a specific task that you need done that you either cannot or do not want to do on your own. Often, this document is used during real estate transactions. For example, an attorney will be requested to attend a closing on behalf of a buyer or seller. In this case, the Limited Power of Attorney Document will allow the POA the ability to sign documents at the closing. Once the closing is complete, the powers granted to the POA by the Limited Power of Attorney Document cease.

Though this type of document may assist with protecting present interests by limiting the POA powers, it leaves much to be desired. A Limited Power of Attorney Document does not and cannot anticipate every need you may have in the future. Therefore, when the unexpected occurs, your POA may be left seeking court approval to handle the matter.

Consider a Springing Power of Attorney.

A Springing Power of Attorney is as all encompassing as a general Power of Attorney but it includes a specific provision that requires a certain event to occur before it becomes active. Normally, this event is incapacity.

Theoretically, this document offers the best of both worlds. You maintain sole control over your assets while you are capable then your POA can take over as soon as the activating event occurs. However, there can be significant downsides.

The significant downside and a reason why this type of Power of Attorney Document is not always recommended is the trigger event. If a need arises prior to the triggering event, a court order will be necessary. And, if the triggering event is incapacity, there can be several steps necessary to activate the Power of Attorney Document. These can include providing incapacity to a Doctor or court, which can take time that the POA may not have.

Do I need a Healthcare Proxy and/or Power of Attorney?

The short answer is… YES.

The Basics: A Health Care Proxy is a legal document that allows another person to make medical decisions on your behalf. A Power of Attorney, on the other hand, is a legal document that allows another person to make and/or execute financial decisions on your behalf.

Why a Health Care Proxy is Important: Medical emergencies can occur at any age. If or when that day comes, someone must make medical decisions on your behalf.

Every person has different beliefs/opinions regarding medical decisions. These decisions range from long term care facility preferences to medical procedures you would and would not like performed. These are intensely personal decisions that have taken you a lifetime to develop. By selecting a Health Care Proxy (HCP for short) in advance of a medical emergency, you have the ability to choose someone that shares in these beliefs/opinions. Without such a document, family members or a court appointed individual may make decisions on your behalf without this knowledge. And, in some cases, this results in actions being taken or not taken that you do not agree with.

Therefore, a HCP is an essential document, in order to make sure that your wishes are carried out, when you are no longer able to make the decisions yourself.

Why a Power of Attorney is Important: Again, medical emergencies can occur at any age. If or when that day comes, someone must make and execute financial decisions on your behalf.

One of the biggest reason to select a Power of Attorney (POA for short) prior to a medical emergency is TRUST. As with health decisions, financial matters are intensely personal. By creating a POA, you can select someone that you know has similar beliefs/opinions regarding money as you do.

A second major reason to select a POA is that the future is UNPREDICTABLE. For years you have planned for your future. You have been putting away money for a house, children’s college tuition, retirement, etc. But then the unexpected happens. That money you have been saving now needs to be used for a different and unforeseen purpose; such as a child with disabilities, the unexpected loss of a job or medical bills. When you are in charge of your finances, you can make these alterations and move forward. However, if you are unable to make financial decisions on your own, a POA will be able to continually monitor your finances and make the necessary changes to protect you into the future. Without such an individual, you may be stuck with the plan that you created prior to your incapacitation that is no longer in your best interest.

As with the HCP, if you do not have a POA the court can appoint someone to act on your behalf. However, this person may not share your beliefs/opinions, may be appointed too late to correct financial errors or may be unwilling/unable to make the decisions/changes you would have. Therefore, it is important to select your own POA, and understand how your finances will be handled when you are no longer capable of handling them on your own.

Conclusion: The future is unpredictable. Put together a Healthcare Proxy and Power of Attorney now so that your future is a little more protected from the unpredictably negative turns life can take.

March 2015 Newsletter Trending Now

T&B Trending March 2015 Vol 2-2015
 

Housing Market Continues Slow Climb Toward Stable Levels

 

Source: Dsnews.com

 

The latest Multi-Indicator Market Index (MiMi) from Freddie Mac, released Wednesday, showed that the U.S. housing market showed continued stabilization for the fourth straight month in December.
Read more >>

 

 

Q4 2014 Commercial Real Estate Cycles from Dividend Capital

Source: Ted C. Jones

There is one blog topic that I write about quarterly that is preceded by several calls and emails as to when it is scheduled to be available – The Cycle Monitor – Real Estate Market Cycles from Dividend Capital, prepared by Dr. Glenn Mueller from the University of Denver. Read more >>

 

FHA launches historic homebuyer ‘care package’ for 2015

 

Source: Inman.com

 

After several years of lackluster participation in the housing market, first-time homebuyers are getting a boost from the Federal Housing Administration (FHA) this year.
Read more >>

 

March 2015 Newsletter Trending Now

 

Source: Topkins & Bevans Blog

 

This is the time of the year when all of us have no choice but to pour through our bank statements, credit card statements, checks and acknowledgments from charities regarding contributions….. While you are going through this data-producing exercise, you might want to consider your Will, and other elements of your Estate Plan, at the same time.
Read more >>

 

Topkins & Bevans

Offices in

Boston, Braintree and Waltham

rbevans@topbev.com

www.topkinsandbevans.com

Tax Time Considerations: Estate Plan? Yes

This is the time of the year when all of us have no choice but to pour through our bank statements, credit card statements, checks and acknowledgments from charities regarding contributions. Whether you prepare your own tax returns, or have a professional assist you, the first step is always to gather together data from the past year and assemble it into a form which will permit the preparation of an accurate tax return.

While you are going through this data-producing exercise, you might want to consider your Will, and other elements of your Estate Plan, at the same time. While your Estate Planning documents focus more on whom you would want to take charge of your assets, and to whom, and in what amounts you wish your assets to be distributed, preparation for getting your Estate Plan in shape is not that much different from getting your tax information together. Perhaps, you have an Estate Plan, but it was executed many years ago and the people you selected to serve as executors and trustees, or health care agents, are no longer living or have moved away. Maybe, your children have achieved a level of maturity where you can trust them to take care of things when you are no longer able. Maybe you have developed a relationship with a bank, or other financial institution, which you are comfortable with, and whom you want to get involved.

The point is just like your tax returns take some effort to gather information; your Estate Plan requires the same type of thinking and assembling. It matters not that you have located all the information concerning your income for 2014, if you do not get same on the return; you are in jeopardy with Federal and Massachusetts tax-collecting authorities. Similarly, even if you have located your old Will or Trust, your wishes will not be served unless you make the effort to meet with an attorney and inform him or her whom you want to be in charge, and to whom your assets should be distributed. Sometimes, all you need to do is “tweak” your current Will or Trust with a Codicil or Trust Amendment. Other times, you may need to prepare entirely new instruments, because the ones you have in place are so “dated”.

If you are one of that majority of Americans who have no Will or Trust in place, AT ALL, tax time may be the time that you climb off the fence and stop procrastinating with your family’s future. You really owe it to your spouse and children to put down in writing to whom you want your assets distributed, and which people you want involved in making it happen. Not everyone in your family will be happy with your choices, but no one will be able to say “Mom would have wanted this” or “Dad would have wanted that”. You do not have to rely on the laws of the Commonwealth of Massachusetts to distribute your wealth. You will have made it perfectly clear what you want.

Estate Planning Essentials: Your Age Doesn’t Matter

 

The current pace of our lives makes finding time to develop an Estate Plan more and more difficult. Please find below some moves you can make which are not complicated, or expensive, but which can improve your position, and let you sleep at night.

  1. Create or Update Your Will or Revocable Trust

    These documents are the cornerstone of your Estate Plan. They insure that your assets will be distributed exactly as you would like. Failure to keep these documents current may result in disinheritance or financial hardship for loved ones who depend on you.


  2. Review Beneficiary Designations. When you established life insurance or retirement plans, you were asked to name beneficiaries of these accounts who will receive the assets upon your death. It is important to review these designations regularly to ensure that your assets pass to the appropriate loved ones.
  3. Create or Update Your Health Care Proxy and Living Will You need a health care proxy to appoint your spouse, a trusted friend or family member to make medical decisions on your behalf in the event you are unable to make those decisions yourself. Your health care agent will work with your doctors and other health care providers to make sure you get the medical care which is best for you. A living will is a type of advance directive that gives you the opportunity to formalize your wishes as to prolonged health care in the event that your condition is terminal. NOTE: Living Wills give direction but are not legally binding
  4. Create a Durable Power of Attorney. Regardless of the size of your estate or your family circumstances, you should have a durable power of attorney. You may appoint your spouse, a trusted family member or friend to handle all of your financial affairs on your behalf in the event you are not able to do so, yourself.
  5. Establish Guardianships for Minor Children. Have you considered who would take care of your minor children in the event of the untimely passing of you and your spouse? If you do not finalize your wishes in your Will, a court will decide who will care for your children. Do not leave your children’s well-being in the hands of a court. Appoint a Guardian for you minor children in your Will.
  6. Encourage Your Adult Children to Create an Estate Plan. Whether your son or daughter is going off to college or beginning a career, encourage your child to set up an Estate Plan. If your adult child requires medical attention, you have no legal right to their medical records, nor can you participate in health care decision, without a duly executed health care proxy.
  7. Encourage Your Aging Parents to Create, or Update, Their Estate Plans. It becomes increasingly more difficult to discuss finances and health care decisions with your parents as they age. Encourage your parents to put an Estate Plans in place, or review their existing Estate Plans.

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