Monday, August 27, 2012

The personal medical authorization

Estate planning web sites have recently identified a gap in the "typical" collection of planning documents: the plain HIPAA-compliant medical authorization that allows a doctor or hospital employees to provide information about your health condition to members of your family or a trusted friend in the event of a sudden illness or injury. A parent of a minor child who has been in an accident will be able to find out what his doctors are doing for him, but once he turns 18 he is legally an adult and the lines of communication shut down.

A doctor will usually be willing to talk with a patient's spouse about her care, and often to adult children of a single elder, but not to any other relative. 

In truth, all of these disclosures could be made, based on the language contained in the Final Privacy Rule that controls the release of medical information: 
"Limited uses and disclosures when the individual is not present. If the individual is not present for, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual's incapacity or an emergency circumstance, the covered entity may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the person's involvement with the individual's health care. A covered entity may use professional judgment and its experience with common practice to make reasonable inferences of the individual's best interest in allowing a person to act on behalf of the individual to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of protected health information." 42 CFR 164.510(b)(3) 
But hospitals and physicians have been so shell-shocked by the shrill warnings about forbidden disclosures and the hefty penalties that can apply that none of them dare rely on language like this to disclosure medical information without an authorization. Thus, in just about every case, an authorization is needed. 

At his law firm's site, Jack Bolling of Milford, Michigan offers a humorous story from his own experience. 

We offer a simple HIPAA authorization form, for use by anyone who wants to plan ahead in case of emergency. While it is not guaranteed that it will be accepted everywhere, since each health facility seems to operate under its own rules, it has been drafted with the requirements of the HIPAA Final Privacy Rule in mind, and it offers the best chance for the parent of a young adult, the friend of a single person, or a relative of a vulnerable elder to get the needed information about his or her medical condition in the event of injury or illness. 

Sunday, August 19, 2012

Cash as a joint asset

A man in his 70s has, for his own personal reasons, taken $50,000 from his bank accounts and has placed it in his safe deposit box. He wants his son to have access to the money (or what is left of it) when he is gone, and to divide it between himself and his two brothers.

Thoughts and discussions:
  • If his son is not listed as a person authorized to access the box, he may not be allowed by the bank to open it after the father dies, even if the son is given a key. The son should be added as an authorized user.
  • Even with the box accessible to the son, the money is still the father's asset and a probate estate will have to be opened. But a joint tenancy can be created for any property, not just money in bank accounts or brokerage accounts. Recommendation: a document, signed by the father, stating that the money is jointly owned between himself and his son, and will pass to the son as his survivor on his death.
  • The intent is that the son divide the money with his two brothers. That is essentially an oral trust. Dad intends that Son will get the money for the purpose of making the division. This can be effective, but it may not be enforceable. A written trust is better for the very reason that it makes clear that a trust is being established and what the trustee is directed to do. If Son decides that he wants to keep the money for himself, it may be difficult for his brothers to prove that Dad intended otherwise, if the trust is only oral. The written trust is much more enforceable than an oral trust. 

A note: The scenario is a hypothetical, based on a discussion that I had with another lawyer. It is a rule that actual clients' cases are not discussed at this site or in any other public forum.