Wills and living trusts are legal tools needed for proper estate planning, but what happens if the person covered by the will becomes incapacitated and important healthcare decisions must be made on his or her behalf? The personal representative named in the will or trust must then make life-or-death medical decisions, but what if that person is blocked from accessing the necessary medical records?
This can happen if the will or trust lacks the proper instrument to provide that access; sometimes this necessity gets overlooked during the estate planning process.
Bearman Law has been helping people like you plan for the future for years. Attorney David Bearman is experienced in every aspect of proper estate planning and can help you and your loved ones avoid unpleasant and avoidable legal consequences when drafting a will or living trust. He can guide you in every step along the path to proper estate planning. If you are in or around Salem, Lake Oswego, or the Willamette Valley, Oregon, contact Bearman Law today for a free consultation.
The privacy of a person’s medical records is protected by a federal law commonly called HIPAA, short for the Health Insurance Portability and Accountability Act. Those who maintain medical records are subject to governmental fines if they release those records without the person’s consent, or if there is a breach whereby outside entities obtain the records through the record-holder’s negligence or HIPAA abuse. Fines range from $100 to $1.5 million depending on the severity, number, and frequency of the leak.
How does this figure into a person’s estate planning? A will or living trust generally designates someone as the personal representative of the person originating the document, known as the testator or will-writer.
The personal representative will be responsible to settle all debts and finalize all arrangements of the estate. The personal representative will also be given the power to make medical decisions for the will-writer should that person become incapacitated. Therefore, a will or living trust must provide the personal representative with both a general power of attorney and healthcare power of attorney.
This is where HIPAA comes into play: In most cases, the personal representative will need HIPAA access to the incapacitated person’s medical records to make the right healthcare decisions. Therefore, the healthcare power of attorney must also include a HIPAA release authorization.
Generally, the personal representative will be a spouse, partner, adult child, sibling, or trusted friend, but an important caveat is that the power of attorney for the personal representative must be signed and executed while the principal – you, the will writer – is of sound capacity to do so. In other words, don’t wait until it’s too late.
The power of attorney can be written as a “springing” document so that it “springs” into effect only upon the principal’s incapacitation or death. The general, or durable, power of attorney allows the personal representative to oversee all of the principal’s financial affairs, to the point of writing checks, paying debts, selling off assets, signing legal documents, and the like. The healthcare power of attorney gives the representative the right to make all medical decisions for the principal. Thus that person will need to have a HIPAA release authorization included in the healthcare power of attorney.
Powers of attorney in Oregon do not require witnesses during their signing and execution, unlike many other states. Nor does Oregon require any specific form or format for the document. However, the document must be signed and notarized. The personal representative and family members should all be notified and receive copies of applicable documentation to avoid misunderstanding and conflict down the road.
Drafting an effective estate plan requires careful consideration and crafting. It should also be comprehensive and contain all the documents necessary for easy implementation. While Oregon may not require specific verbiage or format, any deficiencies or mistakes can play a huge role in how matters unfold.
Therefore, you need the professional guidance and services of an experienced estate planning attorney. Attorney David Bearman at Bearman Law has long been serving clients in the Salem, Lake Oswego, and Willamette Valley areas of Oregon, after a distinguished 20-year career in the Navy as an engineer. He has the experience to effectively represent your best interests every step of the way.
Bearman Law is dedicated to helping you navigate the often murky waters of estate planning. David will establish a personal relationship with you and provide you with experienced and proven support in executing all the proper documents, whether a will, living trust, or power of attorney. Call Bearman Law today for a free meeting.