Federal HIPAA Requires Power of Attorney or Written Document to Permit Family Access to Medical Information
If you haven't yet updated your Living Will power of attorney to reflect current federal privacy rules, it's time to do so. If you don't have a POA, you should think about obtaining one, especially if you're getting up there in years. According to the Home News Tribune "Update Health Care POA" January 17, 2003, page 5, Health Care Powers of Attorney (Living Wills) are directives that appoint a relative, friend or some other party, known as an "agent", to make medical decisions on your behalf if you can't do so, for reasons ranging from injuries sustained in a car crash to incapacity resulting from dementia. Health care POAs can be written as stand-alone documents but typically are included along with a living trust, a more comprehensive estate-planning tool. It's best to have a lawyer write a POA for you, and it's wise to have an attorney insert any changes. The Federal Health Insurance Portability and Accountability Act (HIPAA), which took effect in 2001, makes it wise to prepare a Living Will and Power of Attorney. These Federal HIPAA regulations aim to safeguard patient medical records by imposing privacy rules on doctors, pharmacists, other medical staff, insurance companies and so on. HIPAA calls for fines - in some cases, stiff ones- and even prison terms for disclosure violations, thus making health care providers think twice about giving out a patient's information to others.
"Powers of Attorney need to be adjusted to allow our clients immediate and hassle-free access to the medical records of the parents and other loved ones on whose behalf they are acting", wrote Arizona attorney Thomas Murphy in this months issue of Arizona Attorney, a publication of the State Bar. We recommend new health care POA Living Wills that would cover the following points: A statement directing physicians, hospitals, pharmacies, insurers and others to release a patient's health records to the agent. Murphy emphasized these directives should be updated to include specific references to HIPAA. The biggest problem is that many insurers will not honor any pre-April POAs, yet agents often must confer with insurance companies before the firms will pay a patient's medical bills.
Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
Kenneth Vercammen & Associates, P.C,
2053 Woodbridge Avenue,
Edison, NJ 08817,
Thursday, August 18, 2011
Federal HIPAA Requires Power of Attorney or Written Document - New articles, ABA newsletters and Community events
Federal HIPAA Law Now Recommends New Power of Attorney-New articles, ABA newsletters and Community events
Federal HIPAA Law Now Recommends New Power of Attorney
A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was recently adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients. The effects of HIPAA are far reaching, and can render certain previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues. As HIPAA affects not only new documents, any previously executed documents are affected as well. Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority do not take the time to create a Power of Attorney.
National statistics indicate that 80% of Americans die without leaving a Will. Even more do not have a Power of Attorney. There are several reasons for this: fear of death or disability; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills or Power of Attorney). Whatever the excuse, it is clear that people would benefit from having a Power of Attorney.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your family or partner cannot pay your bills or handle your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney in NJ
What are these powers of attorney?
A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving a spouse, Family member or a close friend, the power to handle your affairs if you become ill or disabled.
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.
Why is Power of Attorney so important?
Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse, partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. A Power of Attorney allows your spouse or another person to administer your assets during your lifetime, either upon disability or now.
The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.
Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:
1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to any real estate or lands in which I have an interest. This includes the power to sell all land I own, including any interest I have in my address above.
2. ENDORSEMENT AND PAYMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.
3. MEDICAL RECORDS ACCESS: To be able to access my medical and hospital records under Federal Law HIPAA. Healthcare providers shall release medical information to my Agent. This authorization expires upon my death or upon my written revocation.
4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.
5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11).
7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
8. GIFT GIVING POWERS: To make gifts in amounts which my Agent in his sole, absolute and unfettered discretion shall deem appropriate in any given year on my behalf.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
A Power of Attorney is an appointment of another person as one's agent. A Power of Attorney creates a principal-agent relationship. You, the grantor of the Power of Attorney, are the principal. The person to whom you grant the Power of Attorney is your agent. The agent is normally called an "attorney-in-fact." The attorney-in-fact does not become the owner of your property, but is merely permitted to deal with it within the terms set out in the Power of Attorney. Since an attorney-in-fact has the power to deal with your property, you, naturally, must be careful to give such a power only to a trustworthy person. You have entrusted to your attorney-in-fact those powers which are stated in your Power of Attorney.
The Power of Attorney if effective upon signing is a "durable power." This means that if you should become incompetent and be unable physically or mentally to handle your own affairs, the Power of Attorney, nevertheless, will continue to be as good as it was on the day that you signed it. If you become incompetent, the Power of Attorney will terminate only upon 1) a Court's declaring you to be incompetent or 2) upon your death. The attorney-in-fact may continue to use the Power of Attorney and acts performed under the Power of Attorney will be valid until either of those two events occurs, after which time acts performed by the attorney-in-fact will no longer be valid. Consequently, even if you become incompetent but no Court declares you to be so the Power of Attorney will still be effective.
Most people who give a Power of Attorney to someone else do it with the thought that if they should become ill or incapacitated or if they should travel, the Power of Attorney will permit the holder of it to pay their bills and to handle all of their affairs for them as limited in the Power of Attorney. This is what your attorney-in-fact may do for you under the Power of Attorney which I have prepared for you.
The granting of a Power of Attorney is not like the creation of a joint tenancy in property. Under a joint tenancy, each of the joint tenants has a property interest in the property so held, whereas, a person holding a Power of Attorney, while having the power to deal with the property, does not own any part of it nor can that person become the owner of it under the Power of Attorney by virtue of the Power of Attorney itself. This, however, does not prevent the holder of the Power of Attorney from transferring the property to himself or herself. This is another reason for giving such a power only to one whom you can trust.
Whenever your attorney-in-fact exercises any of the powers granted under the Power of Attorney, your attorney-in-fact must be prepared to show the Power of Attorney to anyone who questions the right to use it. If your attorney-in-fact deals with the title to real estate, it will be necessary for the Power of Attorney to be recorded. I see no reason to record the Power of Attorney until such time as property may be conveyed unless there is fear that the document might be lost.
Occasionally when real estate is dealt with by an attorney-in-fact, an abstractor or a title insurance company will raise a question regarding the use of the Power of Attorney. Unfortunately, there is no way that we can control this. This is indeed unfortunate, but you have no other inexpensive recourse when you use a Power of Attorney.
Federal Estate Tax Return
If a Federal Estate Tax Return is files, a New Jersey Law requires that a copy of the Federal estate tax return be filed with the Inheritance Tax Branch within 30 days after the filing of the original with the Federal government. Also, the Branch must receive a copy of any communication from the Federal government making any final change in the return, or confirming, increasing or reducing the tax shown to be due.
UNIFIED ESTATE AND GIFT TAX CREDIT
A single unified credit against both estate and gift taxes is available. This credit, to the extent available, reduces dollar-for-dollar estate and gift taxes computed under the unified rates schedule.
No estate or gift taxes would be payable on an estate which is valued at less than $2,000,000.
Please note: The tax rate is subject to change by Congress.
FEDERAL ESTATE & GIFT TAX Contemplation of Death
Gifts made more than three years of death are not included in donor's gross estate; exceptions are life insurance, transfers with a retained life estate, transfers and transfers under powers of appointment; gifts made within three years of death are included in gross estate to determine qualification for current use evaluation, deferred payment of estate tax and Section 303 redemptions, etc.
GIFT TAX ?(Annual Exclusion)
New Jersey does not levy a tax on gifts, except in anticipation of death. Any gift made within 3 years of death is presumed to be in anticipation of death and may be subject to New Jersey Inheritance Tax.
An individual may give an amount up to $10,000 to any one person during a calendar year, exempt from tax. A married couple can give up to $20,000 to a person yearly without tax. Any number of tax-free gifts may be made during a year.
If you make gifts to one person of more than $10,000 during the calendar year, file a Federal Gift Tax Return with the District Director of Internal Revenue.
FEDERAL MARITAL DEDUCTIONS
Presently, unlimited amounts of property can be transferred between spouses without estate or gift tax.
Note: Certain transfers of an interest in property do not apply under this deduction. To determine whether this last note applies to your particular case, you may wait to contact your attorney or the Internal Revenue Service.
FILING FEDERAL ESTATE TAX RETURNS
Form 706 must be filed and any tax due must be paid within 9 months. The nearest Internal Revenue office will furnish tax Form 706:
If your estate is subject to Federal Estate Tax, you may want to seek professional assistance in estate planning. Consideration of tax aspects can save heirs money.
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