San Diego Estate Planning Lawyer Blog

The short answer to this question is just about anyone unless they are a minor. Anyone over the age of 18 can execute a health care directive and they are simple to fill out. The reality of life is that it is often unpredictable. We never know when an unexpected medical crisis may occur.

Most of us remember the case of Terry Schiavo, the young mother who fell into a coma in Florida, resulting in a long struggle between her husband and her parents as to whether she should be taken off life support. Recently in San Diego, the news reported on divorced parents whose son is in a similar vegetative state and they disagree as to what should be done.

Anyone being admitted to a hospital should have a health care directive and in fact most hospitals will request that you provide them with a copy of yours or execute one if you don't already have one. Certainly seniors and anyone facing serious health problems should have one so that an agent is designated to make health care decisions and there are instructions for health care that set forth your wishes.

Advance Health Care Directives are recognized in every state. They have no time limit; they remain in effect until revoked and they can be amended or revoked at any time.

What happens if you do not have an Advance Health Care Directive? Sometimes hospitals will have a policy setting forth who should make medical decisions especially if there are no family disagreements. The California Probate Code also has a procedure to petition the court to assist with medical decisions in the absence of a health care directive. A conservator could also be set up over the person of someone incapable of making health care decisions on their own. Having a health care directive however saves time and money and makes it easier on loved ones knowing that decisions that are made are what you would have wanted.

A document called an Advance Health Care Directive appoints a family member or friend to make health care decisions for you if you become physically or mentally unable to make them for yourself. The person you name is called your “Agent” and you usually name back up Agents as well in case your first choice is unable or unwilling to act. These agents will carry out your wishes concerning life support, medication, nutrition, and other treatment options. In the document called the Advance Health Care Directive, you can set forth whatever provisions and perameters you want concerning these types of issues. You can also specify your preferences for burial, cremation, and funeral arrangements and set forth your wishes for organ donation.

It is important that your agent have access to your medical information. As we indicated in the last blog, under HIPAA and CMIA, your medical information is private and a release must be signed by you to allow your agent to access the information. Having the appropriate HIPAA language in your Advance Health Care Directive is important.

The estate planning attorneys at Pinkerton, Doppelt, & Associates, LLP always include an Advance Health Care Directive in the Revocable Living Trust package for trust clients. If you need such a document (or your adult children need one) we can also prepare them separately. If you have a trust already in place, make sure that this document is included with your trust and also check to see if it contains the HIPAA language. Many trusts which were prepared several years ago may not have the HIPAA language. You also may have a similar document that was drafted years ago called a Durable Power of Attorney for Health Care or a Living Will. These documents also probably do not have the HIPAA language.

The language which is necessary refers to HIPAA and CMIA and gives your agent the authority to obtain, use and disclose your health information and medical record so that your agent can deal with health care providers who are providing health care services to you. If you need help determining if your documents have the appropriate language, call us or email us for assistance.

The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

2. If the individual had a properly prepared revocable living trust, the successor trustee can step in and manage that individual’s affairs if the trustor becomes incapacitated. This needs to be done in advance of the incapacity however. Once the proposed conservatee lacks capacity, a trust cannot be created.

3. If the person who needs help with personal decisions will accept the help of relatives or friends about such things as medical care, food, clothing, and shelter, a conservatorship of the person may be avoided.

For more information about setting up a conservatorship or avoiding one by the preparation of a revocable living trust, contact us at Pinketon, Doppelt, & Associates LLP.

San Diego is a multi-cultural city with people of various ethnic backgrounds and religions. Our community has such religious faiths as Catholics, Jews, Hindus, Buddhists, Christian Scientists, Jehovah’s Witnesses as well as many other faiths. A person’s religious or spiritual beliefs can have importance for their estate planning, and in particular for their Advance Health Care Directive. Standard form Advance Health Care Directives may need to be tailored for people of certain religious faiths.

An Advance Health Care Directive is a document which allows you to set forth your personal wishes for such things as life-saving procedures, blood transfusions, hydration, nutrition, and life support. You appoint an agent to make such decisions for you if you are unable to do so. A website has information about guidelines for health care powers of attorney for evangelical Christians, Muslim, Hindus, and Buddhists. Catholic guidelines are also available online as well as teachings from Judaism. Sharp Hospital here in San Diego also has a checklist of 25 topics including your religious beliefs to discuss with your agent for health care. You can also ask your Rabbi, Priest, or other spiritual advisor about what beliefs of your faith affect health care and end of life issues.

If you need specific language in your Advance Health Care Directive to incorporate your religious beliefs, the attorneys at Pinkerton, Doppelt, & Associates, LLP can assist you with that or with any other estate planning issue. Contact us by phone or e mail us at Pinkerton, Doppelt, & Associates, LLP. Your initial in-house consultation is complementary.

If your child is now 18, there is valuable information for you and your now “adult” child available for free. There is a publication entitled “When You Become 18: A Survival guide for Teenagers" published by The State Bar of California. This pamphlet can be ordered in print form or downloaded from the bar website and answers such questions as what happens if my 18 year old commits a crime? As parents, are we responsible if our 18 year old injures someone with the family car?

One document every adult child should have is an Advance Health Care Directive to appoint someone to make health care decisions in the event of an incapacity. Once a child turns 18, the parents can't make medical decisions for their child. If the parents are divorced or separated and disagree on medical treatment, how is it resolved?

Similar to the Terry Schiavo case, there recently was reported the story of a 25 year old single woman who was brain damaged as a result of a dirt bike accident. She had no living will or power of attorney for heath care. Her divorced parents are arguing over a DNR order (do not resusitate order) signed by her mother and whether the mother or the father should be appointed her temporary guardian to make those end of live decisions.

An Advance Health Care Directive is a document that would have avoided this conflict by naming an agent to make health care decisions and setting forth the young woman's wishes about life support and end of life issues. At Pinkerton, Doppelt, & Associates, LLP we can help you with an Advance Health Care Directive or any other estate planning issue. Please call or email with any questions in this area or to set up a free in-house consultation.

In San Diego, many residents have had problems with privacy with health care records as well as access to these records. Many San Diego hospitals including Scripps, Sharp, Pomerado and others require the proper forms to be executed to obtain health care records. At our law firm of Pinkerton, Doppelt & Associates, LLP, we prepare estate plans which include revocable living trusts. In the revocable living trusts, we have the advanced health care directive which is a component of the HIPAA legislation. If you have any questions regarding this or any other estate planning matter, please contact us by e mail or phone.

Recently, the first-ever federal privacy standards to protect individuals' health-care information went into effect. The mandate for these standards, collectively known as the Privacy Rule, was in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The Privacy Rule gives individuals access to their medical records and greater control over the use and disclosure of their personal health information. States are still free to keep or adopt their own policies or practices that are at least as protective as the new federal requirements.

Entities subject to the Privacy Rule include health-care providers, health plans (including insurance companies and HMOs), and health-care clearinghouses, such as physicians' billing services. The regulations also apply to "business associates," meaning any organization or person (other than a worker for a covered entity) that receives or accesses private medical information on behalf of a covered entity. When a covered entity uses a business associate, the two must enter into a written agreement containing specific protections for the health information used or disclosed by the business associate.

On its face, the Privacy Rule does not directly apply to employers, but that is not to say that employers need not become familiar with its requirements. Employers frequently interact with covered entities and their business associates. In addition, employers administering their own group health plans are effectively brought within the reach of the Privacy Rule.

The Privacy Rule applies to "protected health information" (PHI), defined as all individually identifiable health information held or transmitted in any form or media, whether electronic, paper, or oral. Individuals generally should be able to see and obtain copies of their PHI within 30 days of a request. Covered entities must provide a notice to individuals describing how their PHI may be used and informing them of their rights under the Privacy Rule.

In the interest of promoting quality health care, providers are not restricted in their ability to share information needed to treat patients. Generally, PHI may not be used for purposes unrelated to health care. However, in the rare cases where it is allowed, only a minimum amount of protected information may be used or shared. Covered entities may release medical information to outside businesses such as insurers, banks, or marketing firms only with specific written authorization from the individual.

The Privacy Rule gives individuals the right to request alternative means or locations for receiving PHI communications. For example, a patient could ask a doctor to communicate with the patient through a designated telephone number or address. Another reasonable accommodation might be sending medical information to a patient in a closed envelope rather than on a postcard.

The Privacy Rule requires covered entities to set up policies and procedures to protect the confidentiality of PHI. Written privacy procedures must identify staff with access to PHI and describe how such information will be used and when it may be disclosed. There must be training of employees in privacy procedures and designation of an individual to be responsible for insuring that those procedures are followed.

Covered entities may continue existing disclosures of health information for certain public responsibilities, subject to limits and safeguards that are specific to such circumstances. Examples include emergencies, identification of the body of a deceased person, and public health needs. If there is no other law that mandates disclosure to meet a particular public responsibility, covered entities may use their professional judgment to decide whether to make disclosures

The Government may impose civil penalties of $100 for each failure to comply with a Privacy Rule requirement. A penalty may not exceed $25,000 per year for multiple violations of the same requirement in a calendar year. If a violation is due to reasonable cause, involved no willful neglect, and is corrected within 30 days of when an entity knew or should have known about it, no civil penalty may be imposed. A knowing violation of the Privacy Rule could also bring a fine of $50,000 and up to a one-year prison term. Maximum criminal penalties are higher if the wrongful conduct involves false pretenses, or use of the health information for commercial advantage, personal gain, or malicious harm.

In San Diego, California many residents are in the military. As we know, deployments are common. In light of the recent call to active duty received by thousands of United States military reservists, employers and employees alike need to know their obligations to each other when employees serve in the uniformed services. The reemployment rights of military members were revised by Congress in 1994. The main thrust of the legislation is to guarantee the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.

Estate planning issues always arise and state law is very important in San Diego, California and there is information about necessary powers of attorney. The federal law applies to all Armed Forces members, including the Reserves, National Guards, the commissioned corps of the Public Health Service, and any others designated by the President during a war or an emergency. Employees of both private and public employers are protected when they have embarked on and have been honorably discharged from military service consisting of active duty, inactive duty training, full-time National Guard duty, or absences for fitness examinations. Unlike some other federal employment statutes, the law on reemployment rights of individuals in the Armed Services has no minimum number of employees for there to be coverage.

An employer is prohibited from using a person's military service or application for such service as a motivating factor in any adverse employment action against that person. Nor can an employer retaliate against an employee who participates in the reporting, investigation, or filing of claims asserting that the employer violated the federal statute.

To receive the benefit of the statutory rights and protections, an employee generally must give the employer advance oral or written notice of military service. Exceptions to this requirement are recognized when giving such notice would be impossible, unreasonable, or contrary to military necessity. One important consideration is the care and protection of minor children left behind and sometimes a guardianship is necessary.

Employees leaving their jobs for military service lasting less than 31 days are entitled to continued health insurance coverage at the same cost, if any, that active employees would pay. An advanced health care directive is really essential for any member of the armed services on deployment in the event they are incapaciated and sent back to the United States under the care of their family. For service lasting more than 31 days, employees may elect to pay for continuation of their health coverage for up to 18 months, or until their reemployment rights expire, whichever comes first. Upon returning to work after military service, an employee is entitled to immediate health insurance coverage, even if returning employees usually face a waiting period.

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