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Health Care Proxies and Power of Attorney

A Health Care Proxy is a document that designates an agent to make health care decisions on an individual’s behalf in the event that he or she is unable to do so. Federal regulations, such as the Health Insurance Portability and Accountability Act (HIPAA), protect the confidentiality of an individual’s medical information as well as their ability to make health care decisions. The establishment of a Health Care Proxy and the HIPAA release form are the best means of carrying out health care decisions on behalf of loved ones.

A signed Health Care Proxy must contain specific language that allows an agent, the appointed medical care representative, the ability to act on behalf of the individual, or principal. For instance, if the principal would like the agent to be able to access his or her medical records, then the Health Care Proxy should explicitly state just that. Additionally, the signing of a new Health Care Proxy overrides any previously executed proxy. This is important to note because if the principal has a comprehensive Health Care Proxy, but signs a basic Health Care Proxy while at a hospital, it will essentially revoke his or her comprehensive Health Care Proxy that had been previously signed. This means that the comprehensive Health Care Proxy will no longer be a viable document and can no longer be used because it is not in effect.

Also, it is important to maintain a Durable Power of Attorney. A Durable Power of Attorney is important to have because, oftentimes, an agent is unable to deal with Medicare or Medicaid and other supplemental insurance companies without it.  You will also need a Durable Power of Attorney to handle financial affairs and to be able to act if the principal becomes incapacitated.  In these instances, a Health Care Proxy is not suffient and a Durable Power of Attorney is required for a third party to act on your behalf.

A Power of Attorney allows the principal to designate an agent to act on their behalf for financial matters. It is very important to have a valid Durable Power of Attorney prior to an individual becoming incapacitated because it alleviates the need to Petition the court for the appointment of a Guardian to handle the individual’s affairs when they become incapacitated.

In addition to a Health Care Proxy and a Durable Power of Attorney, individuals should also sign a HIPAA release form as well. This document allows anyone listed on the form to be able to access an individual’s medical records if needed. The HIPAA release form is accepted by most hospitals and doctor offices in the United States. By signing a HIPAA release form, it simplifies the process for obtaining medical records.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Why Establishing a Durable Power of Attorney is Important

A power of attorney is an important estate planning document and can be an essential tool in ensuring that an individual’s wishes are carried out should he or she become mentally or physically incapacitated. A power of attorney is a standardized legal document that allows an individual, known as the principal, to designate a representative, known as the agent, to make financial decisions on their behalf if they become incapacitated or unable to act on their own behalf. A power of attorney specifies how much power an agent will have and can be created with limited powers, broad powers and can become effective upon the occurring of an event. Many individuals assume that regardless of whether it is limited or broad that the document will contain the same language and provisions. However, more often than not, this presumption is incorrect and may lead to issues in the future.

A durable power of attorney gives an agent essentially the same powers as the principal. The term “durable” means that the power of attorney will still be effective even if the individual becomes incapacitated or subsequently disabled. A power of attorney goes into effect as soon as it is signed and notarized. The principal may specify that the agent cannot use the power of attorney unless he or she becomes incapacitated or unable to act for themselves. However, if this stipulation is not specified, the power of attorney may be able to utilize his or her power prior to those circumstances.

Some individuals seek to establish a power of attorney that is effective upon a triggering event, such as incapacitation. However, there are several unforeseen issues that may arise if this type of power of attorney is created. One issue that may arise is that the agent may need to show an affidavit that states that the triggering event has occurred prior to them utilizing the power of attorney. Another issue that may arise is that regardless of the law stating that the agent can make financial on behalf of the principal with the affidavit, banks and other institutions may be hesitant to grant the agent his or her power under this type of power of attorney.

Many individuals believe that by establishing a power of attorney his or her agent has broad gifting power. Usually, when someone establishes a statutory power of attorney that is not the case or, in some instances, it will not allow an agent to make a gift in excess of $14,000 per person, per year. When a power of attorney does not include a statutory gift, rider authorizing major gifting power, it may result in an agent being unable to transfer assets.  This may result in the Principal being unable to transfer funds to be eligible for Medicaid or to receive reductions in estate tax. Furthermore, a broadly drafted power of attorney with language permitting an agent to create a revocable or irrevocable trust on behalf of the creator can save a tremendous amount of money in the future, whether it is for estate planning or long-term care planning purposes.

In New York State, an agent is permitted to gift and transfer assets to themselves and others.  However, this is only allowed if the power of attorney clearly states that the agent can do so. This is referred to as a statutory gift rider, also known as a gifting clause. By establishing a power of attorney with a gifting clause, it allows an agent to make gifts or transfer assets for purposes such as long-term care planning or to meet estate and income tax needs.

A common question people ask regarding the establishment of a power of attorney is, will the principal lose control of his or her finances and assets after the legal document is established? The answer is “perhaps”. The principal still has the right to control his or her financial resources and properties. However, with the establishment of a power of attorney, the principal allows the agent access to their finances without permission. For this reason, it is important that individuals choose an agent they trust who will not be dishonest or unscrupulous with the assets.

For individuals seeking to establish a power of attorney, it is important that they consult an experienced estate planning lawyer who will draft the document to meet your current and future needs and wishes. The elder law and estate planning attorneys at Tanya Hobson-Williams, PC are skilled in all aspects of estate planning and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York estate planning and elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form

Daughter of 85-year-old Being Denied Guardianship Rights

As a loved one grows older or when he/she suddenly becomes incapacitated, the basic human instinct is to protect them from harm. And although there are many cases involving family and friends with bad intentions, it is clear that if the ability to make decisions for your loved one was stripped away from you, the results would be heartbreaking. That is what a Pittsburgh woman is claiming regarding the medical treatment and control of her mother.

Tanya Hobson-WilliamsMirsada Begovic, the daughter of 85 year-old Enisa Begovic, claims that in the last two months, the University of Pittsburgh Medical Center (UPMC) has restricted her access to her mother and has required her to be escorted to her mother’s room by security, after the hospital accused her of interfering with her mother’s medical care. Mirsada, a physician trained in Bosnia who once was part of the University of Pittsburgh Medical School staff, says however, her only offense has been advocating forcefully for her mother. Continue reading “Daughter of 85-year-old Being Denied Guardianship Rights”