Key Concepts and Considerations

HIPAA — The Health Insurance Portability and Accountability Act of 1996 was created to protect our privacy. It is also the reason why we sign waivers every time we go to our doctor’s office. In short, our medical records are private and all medical information about us must be kept confidential, according to this law. The problem that can arise from this seemingly well-intended protection is that our loved ones may not have access to our condition in times of accident or illness. Medical professionals, if they are to follow the law, cannot divulge our medical condition, even to family members. To avoid this problem, a “HIPAA Waiver” is prepared that lists those persons whom a client wants to provide access to in case of a sudden illness or accident. Copies of the waiver are provided to each person listed on the waiver and, in case of a crisis, the medical provider can be given a copy of the waiver and can then discuss the client’s medical condition with loved ones.

Appointing of agent for minor children — Both parents are authorized to make medical decisions for their children, but what if they are away or unable to do so? When we leave town on business, or in the event of accident or illness, our children are at risk. If they are in need of medical attention, it is prudent to appoint a close friend or relative to step in with the authority to make decisions for our children. It is prudent to choose at least two alternates from different families to act in order to provide maximum protection for unexpected emergencies.

Living will — End-of-life decisions are personal ones. These are issues we each should decide for ourselves and this document sets out our wishes in the event death is near or we are in a persistent vegetative state. Living wills handle the very sensitive issues of whether we want to be provided with food and fluids at the very end of life, or if our bodies should be kept alive in the event our brains no longer function at a cognitive level. The document addresses issues of pain medication and the withholding of life sustaining support when that support would only serve to artificially prolong the process of dying. By preparing a living will, a client expresses his or her wishes for him or herself, saving others from making these painful and difficult decisions for them, and gives everyone the comfort of knowing that the wishes of the patient are being followed.

Wills — Whether we create on or not, everyone has a will. The state has crafted one for us in the event we do not prepare one for ourselves. Is it the right one for you? Probably not. The intestacy statute lays out a generic distribution of our assets if we die without a will (no, the state does not keep our assets). Nevertheless, this generic distribution is probably not right for the vast majority of clients. It is not customized to the family, offers no protection for assets going to irresponsible or special needs beneficiaries, does not properly address issues dealing with assets to minors and may not appoint the proper people to serve as responsible parties to distribute our assets. For all of those reasons and many more, a proper and customized will is recommended for every client, after a discussion of the client’s wishes and goals for their assets. Frequently, we can also offer suggestions on how to achieve financial goals for loved ones beyond merely distributing assets outright. A properly prepared will is an expression of a client’s wish that his or her assets be used for the benefit of his or her loved ones.

Trust planning — In customizing an estate plan for a client, there are times when it is appropriate that trust be used, either in conjunction with a traditional will or in the form of a Revocable Trust which, in many ways, takes the place of the traditional will for the purposes of estate planning. There are many forms of trusts, both revocable and irrevocable and they are used for a variety of purposes and to accomplish a variety of goals. As with the preparation of a will, the use of trusts in estate planning is tailored to the client’s goals as well as his or her assets. Some common forms of trusts are irrevocable life insurance trusts, supplemental needs trusts, spendthrift trusts, charitable remainder trusts and revocable trusts, each of which has a particular use and purpose.

Probate and trust administration — Although many clients have revocable trusts prepared with the goal of avoiding probate, the process of trust administration and the probate of an estate are not terribly dissimilar. Both processes require a person, either personal representative (in the case of probate) or trustee (for revocable trusts), to address the issue of creditors and their claims prior to distributing assets to beneficiaries. Additionally, sale of assets, delivery of particular assets to designated beneficiaries, and accounting for all assets to beneficiaries are among the many duties taken on by the personal representative and/or trustee. This process ensures that the assets of the decedent ultimately are distributed to the correct person or persons and that no liability comes to the personal representative or trustee as a result of the performance of their duties.

Probate and trust litigation — Occasionally, litigation will arise over the intended distribution of assets. Litigation can come from the exploitation of a vulnerable person at the end of his or her lifetime, from the exertion of undue influence by a relative or caregiver, or from the improper distribution of assets themselves, either through a plan that violates Florida law or due to incapacity or diminished capacity at the time the plan was crafted. At the core, litigation ensues when one party is uncomfortable with either the control or the distribution of assets given to another party. The goal of litigation is to resolve these issues in the courtroom environment, allowing all sides to have a fair hearing concerning their grievances and the issues of their case.

Wrongful death and probate — Florida statutes require that a personal injury lawsuit brought in a wrongful death case be brought by the personal representative of the estate of the decedent. In essence, what this means is that only one party will be in charge of and responsible for the management and supervision of the litigation and of the ultimate recovery that arises out of the case, even if several beneficiaries are entitled to damages. The personal representative will be responsible for the hiring and supervision of the personal injury firm which handles any litigation arising out of the wrongful death. This is extremely important as the wrong personal injury firm could cost the family a significant portion of a fair recovery. Many clients retain the personal injury firm first, thereby relinquishing control of the case to that firm. If decisions, questions or even disputes arise between the family and the personal injury lawyer or law firm, many personal representatives are ill-equipped to handle those issues without assistance. By hiring the probate attorney first, a personal representative will have professional support in retaining the appropriate personal injury lawyer and in all future dealings with the personal injury lawyer and his or her firm. In essence, the family gets the benefit of a second lawyer supervising the matter. In some cases, the probate attorney’s fees can be paid at no net cost to the family at all.

Power of attorney — The power of attorney effectively appoints a backup individual to step in for you and exercise power over all of your finances, should you become disabled. It can be prepared with a deployment contingency or without, taking effect only upon disability or immediately as the case may be. When combined with the health care surrogate document, the need for a guardianship is virtually eliminated.

Health care surrogate and HIPAA waiver — The health care surrogate is the person who will make health care decisions for you in the event you cannot make those decisions for yourself. Health care surrogates have authority to approve medical procedures, transfer the patient from one facility to another and consult with medical personnel about the patient’s condition. The HIPAA waiver allows our medical providers to talk about our condition with our loved ones.