HIPAA Waivers and Estate Plans

Estate planning is an important part of life, and one key element of a successful estate plan is incorporating a HIPAA waiver. HIPAA, or the Health Insurance Portability and Accountability Act, is a federal law that protects the privacy of health care information. A HIPAA waiver allows for the release of health information so that an individual’s health care wishes can be honored by their family and/or health care providers. Incorporating a HIPAA waiver into your estate plan can help ensure that your wishes are followed, and your health care decisions are respected. HIPAA waivers are an important piece of an overall estate plan. If you are ready to update your estate plan with a HIPAA waiver, contact the Jennifer V. Abelaj Law Firm at 212-328-9568 to go over your options and make sure your estate plan is in order.

What Is HIPAA?

HIPAA is the Health Insurance Portability and Accountability Act of 1996. It is a federal law requiring medical providers and other professionals with access to private health information to have safeguards and policies to protect that information. HIPAA also created rules about when those healthcare providers and other professionals can share that protected health information with others, such as the patient’s spouse, children, other healthcare providers, or insurance companies.

A central part of HIPAA is that entities that are subject to it, such as healthcare providers, must only share health-related data in particular situations. Additionally, they are only allowed to disclose the minimal amount of information necessary. Generally, they can share the details in these conditions:

• Where the patient has given consent (the patient is present or has provided written permission)
• If it is required to ensure the patient receives the right care
• When it is needed to obtain payment for the services provided

What Is a HIPAA Waiver?

A HIPAA waiver, also known as a HIPAA authorization or release, gives the healthcare provider the patient’s permission to release personal health information to someone other than the patient. Many people have completed a version of a HIPAA waiver when completing paperwork at a new healthcare provider’s office.

A HIPAA waiver must be written in plain language. It also needs to contain the following:

• The healthcare provider’s name
• The person’s name to whom the information is being disclosed
• A description of the information being disclosed
• The purpose of the disclosure
• A specific time frame the waiver is valid and expiration date for the waiver
• The name, signature, and date of the individual giving permission

Is a Medical Power of Attorney the Same Thing as HIPAA Waiver?

A medical power of attorney is often one of the first things people think of when they are trying to make sure their wishes are carried out if they cannot make their own decisions. Medical power of attorneys are an important part of an estate plan, as they ensure that someone is aware of what the individual wants and can ensure those decisions are made. However, a power of attorney is not the same thing as a HIPAA waiver. A medical power of attorney does not grant the same permissions and may not be enforceable if it is not written correctly.

For example, if an individual does not include a durability clause, the medical power of attorney will not be valid when they become incapacitated. A durability clause indicates that whatever powers were granted in the power of attorney will remain in full force and effect even when the grantor is incapacitated.

Why Do You Need a HIPAA Waiver?

Many people fill out a medical power of attorney as part of their estate plan. This gives authority to a trusted loved one to make medical decisions in the event the individual is unable to make their own decisions. Unfortunately, some healthcare providers may be unwilling to provide information about the individual’s health due to HIPAA, even with a medical power of attorney. While a medical power of attorney is still necessary to ensure that the individual’s wishes and desires are not ignored, the HIPAA waiver is required to ensure that providers will give the family member or personal representative the health information needed to ensure those wishes and desires are carried out.

Another instance where HIPAA waivers and estate plans are legally connected is trusts. Individuals may also need a HIPAA waiver if there is a trust agreement that provides for the appointment of a successor trustee if the original trustee becomes incapacitated. In this case, the HIPAA waiver would allow the successor trustee to verify the health information of the trustee and assume the duties of trustee if needed. The Jennifer V. Abelaj Law Firm may be able to assist in setting up both the trust agreement and necessary HIPAA waiver to ensure smooth transitions.

When Should You Sign and Update HIPAA waivers?

Having a current HIPAA waiver is a crucial piece of an estate plan. If an individual is creating their estate plan for the first time, this is an excellent time to sign and include a HIPAA waiver. If there is an existing estate plan, adding a HIPAA waiver as soon as possible offers the assurance that their wishes will be carried out in the event they become incapacitated.

Just as individuals should go over and update their estate plan frequently, they should review their HIPAA waiver and ensure it is still current. They may need to update the names of healthcare providers who are authorized to share information or the names of those with whom that information can be shared. Additionally, HIPAA waivers typically have a specific time frame during which they are effective and an expiration date after which they are no longer considered valid. Therefore, most individuals should update their HIPAA waiver at least as often as it expires.

Do You Need to Add a HIPAA Waiver to Your Estate Plan?

HIPAA waivers and estate plans are a strong combination for ensuring that your wishes are carried out in the even that you are medically incapacitated and unable to speak for yourself. If your estate plan does not have a HIPAA waiver yet, it is time to include one. Reach out the Jennifer V. Abelaj Law Firm at 212-328-9568 to discuss adding a HIPAA waiver and ensuring your estate plan is comprehensive and ensures your legal rights remain protected.

Estate Planning And The Holidays: A Checklist For Your Family

While enjoying time with your family this holiday season, you might want to consider broaching the subject of your estate plan. Since this may be one of the few times when you are around a larger group of loved ones and you have a chance to take stock of your current family situation, estate planning and the holidays can go together. You can give your family the most important gift of all this holiday season: the gift of peace of mind. Telling your loved ones about your wishes and the plans you have made can prevent misunderstandings and unburden your loved ones from having to make difficult decisions. Consider the following checklist for your family as you begin to broach the subject of estate planning during the holidays.

Property

A large part of many estate plans is what will happen to a person’s property after they pass away. Many people draft a Last Will and Testament (will) to provide clear instructions regarding the distribution of their property after their death. As the New York State Bar Association explains, the laws of intestacy will apply to how a person’s assets are distributed without a properly executed will. These are the default laws that favor a person’s nearest relatives to inherit their property after their death. In order to avoid having your property distributed to family members against your wishes according to intestate laws, you may want to consider visiting with an estate planning attorney to ensure your property is passed on to the loved ones you choose after your death.

Another option to distribute property following your death is with the creation of a trust. The New York City Bar Association defines a trust as a financial plan that protects and manages a person’s property while they are alive. After a person’s death, a trust can prevent the need for court proceedings (probate). A person can place various types of property in a trust, control the property during their lifetime, and leave clear instructions on how the property should be managed after their passing.

During this holiday time, consider carefully all of your property (real estate, stocks, bonds, cash, cryptocurrency, valuable possessions, collectibles and more) and who you would want to receive this property after your death.

Financial Accounts

Another important consideration for estate planning is what will happen to your financial accounts after you pass away. If another person is named as a joint tenant with rights of survivorship on the account, they will be able to access and control the funds in the account. However, if only one person is on the account, the account owner can often designate a beneficiary who will receive the funds upon their death by completing a beneficiary designation form that outlines this information.

A person can designate various types of accounts and benefits through beneficiary designations, including:

• IRAs
• 401(k)s
• Pensions
• Stocks
• Bonds
• Investment accounts
• Checking accounts
• Savings accounts
• Life insurance policies

Oftentimes, a trust can be named as the beneficiary of such accounts, which can be a useful way of providing for minor beneficiaries.

Power of Attorney – Medical Decisions

A thorough estate plan will not only address what happens after a person’s death but also what happens in case of a medical crisis. Individuals have the right to create a living will that outlines end-of-life treatment they want and do not want. This document states whether life-saving medical measures should be taken to prolong a person’s life. A person can also create a healthcare proxy that names a trusted person to make medical decisions on their behalf if they are unable to make these decisions themselves. Consider who you would want to make these important medical decisions if you suffer an illness or accident that leaves you unable to make these decisions for yourself.

Power of Attorney – Financial Decisions

A person’s estate plan can also create safeguards in the event they become incapacitated and can no longer effectively make decisions regarding their personal and financial affairs. A durable power of attorney can help manage the financial and legal details of a person’s life. Consider who you would want to make these important financial decisions if you suffer an illness or accident that leaves you unable to make these decisions for yourself.

Long-Term Care

Many people will ultimately need to turn to a long-term care facility for care at the end of their life, or if they suffer an illness or injury. As such, they may need to financially prepare for this possibility. An experienced estate planning attorney can discuss Medicaid eligibility, long-term care insurance, and other strategies that can effectively plan for long-term care.

When to Make Changes in Your Estate Plan 

While estate planning and the holidays can sometimes go hand in hand, there are other times when an update to an estate plan may be necessary, such as in the case of:

• A new marriage
• Divorce
• Birth or adoption of a child
• Separation from a spouse
• Death of a beneficiary or fiduciary
• Change in relationship to beneficiaries or fiduciaries
• A significant change in the value or character of assets
• Acquisition of real property
• Purchase or sale of a business
• Relocation to another state
• A new need to care for a loved one with special needs
• A change in tax laws that might impact the estate plan

The Jennifer V. Abelaj Law Firm can review your existing estate plan and explain when it might be necessary to update your plan.

Practical Tips for Mixing Estate Planning and the Holidays

If you are planning to bring up your estate plan this holiday season, here are some practical tips for achieving the outcome you want:

Talk About It

The holidays should not be the only time your family hears about your plans and wishes. Make the conversation an ongoing one so that they are never left in the dark. Also, plan ahead of time and let your loved ones know that you want to set aside some time during your family visit for this important conversation. Consider whether or not it would be more appropriate to have the conversation before the festivities or after your holiday events as a family.

Approach the Subject with Sensitivity

It can be difficult for adult children to see their parents age or not be as active as they once were. It can also be difficult for people to confront their mortality and talk about death. Additionally, many people feel uncomfortable talking about money.

For these reasons, it is important to approach the subject with sensitivity and to be prepared for an emotional response. The person should focus on wanting to provide peace of mind and ensure their healthcare values are known.

Ask for Help from a Professional

Having a professional available for the conversation can be a helpful buffer. A professional can discuss the issues matter-of-factly and provide an objective perspective. He or she can also explain the purpose of an estate plan and the benefits of being proactive about creating one at any age. You may have the ability to consult with an estate planning attorney during the holidays by phone or even a video call to ensure that all of your loved ones have an opportunity to understand your wishes and even ask questions.

End on a Positive Note

Talking about your estate plan need not be a morbid or negative experience. Emphasize your desire to have your wishes known and respected so your loved ones have peace of mind.

Contact an Estate Planning Attorney to Learn More  

The holidays are a time for families to get together and enjoy each other’s company. However, these types of events also present a perfect opportunity to discuss with family your wishes regarding your estate plan. Consider contacting your family ahead of the holidays and let them know your intentions to have this important conversation. If you need help devising a plan regarding your discussion with your family with respect to estate planning and the holidays, contact the experienced estate planning attorneys at the Jennifer V. Abelaj Law Firm at 212-328-9568 today.

Estate Planning for Young Adults and College Students

Congratulations!  You graduated high school or college and are ready to start adulting.  Moving into your new dorm.  Meeting or seeing new friends.  Long days and nights studying.  Fun on the weekends – of course!  College and post-grad is supposed to be a fun and enlightening time.  But with the fun, also comes some responsibility.

Welcome to Adulthood – Under the Law anyway

As soon as you turn 18, the law says that you are an official adult.  Maybe you are still living with your parents, so you don’t feel like an adult.  But if something happens to you, they have no legal rights to make decisions on your behalf.

Important Adult Decisions:  Who do you Trust to Help?

You can appoint someone you trust to take care of your affairs if something happens to you.  This may be one or both of your parents, an aunt or uncle, a sibling, or a trusted friend.

Document Your Selections and Authorized Powers

The basic and simple documents to appoint a trusted person is a Health Care Proxy and Power of Attorney.

In the Health Care Proxy, you choose the first person that you want to be responsible to speak with doctors and hospital staff, make medical decisions about treatment and surgery, and choose to withhold life support if you are in a catastrophic health situation.  You can appoint more than one person, in successive order.

This document only takes effect if you cannot communicate your own preferences.  This might occur if you are in a coma.  So long as you are still able to communicate, you have complete control over your own health care decisions.

In the Power of Attorney, you may authorize one or more persons to make financial decisions on your behalf.  This might include speaking with your bank, communicating with your Bursar office, or paying your outstanding expenses.

This document is useful even if you are not sick or injured.  It may provide convenience to your agent to assist in your financial affairs while you are on campus and away from home.

Easy to Prepare and Sign

In order to prepare a Health Care Proxy, you need to provide your name and home address and the name, home address and telephone numbers of your selected agents.  Once the document is prepared, you must sign it in the presence of two witnesses.  That’s it!

Preparing a simple Power of Attorney is just as easy.  Provide the name and home address of your chosen agents.  Decide if you want them to be able to work separately or if they must act together.  Once the document is prepared, you must initial it in certain sections, sign and date it in the presence of two witnesses and a notary.  That’s it!

An attorney can easily prepare these documents for you.  Once you have them signed, they are valid until you decide to execute a new document.  This means you sign once, and you may be covered for many years without having to think about it again.  But you have the peace of mind that someone is appointed to take care of you and your affairs if you cannot do so.

Now is the Perfect Time

The summer or winter break is an ideal time to prepare these documents.  It give you the opportunity to consider and decide who should be your agents, work with an attorney to prepare and sign the documents, and have it done before you head back to your studies.

Flat-Fee for Young Adults (ages 18-24)

Our office is currently offering these important documents to young adults (between the ages of 18 and 24) for a low flat-fee of $175 per document. We can turn them around for your signature within 2 weeks. This includes supervising the execution and providing witnesses and a notary.  Do not hesitate to contact me if you would like assistance.