Questions About Beneficiaries, Powers of Attorney, and More
Probate, Trusts & Estate Planning Representation
Over the years, I, Attorney James A. Zakasky, have noticed that many of my clients have similar concerns and questions. In fact, many of these questions are the main discussion of their free case evaluations. To better serve my clients, I have collected these commonly asked questions into a list and provided the answers below. I hope this page sheds some light on your legal matter.
When someone is deemed to be incapacitated because of an accident, mental health and or illness and they do not have a Durable Power of Attorney appointing someone to take care of their property (Home, Bank Accounts, Retirement Accounts) the State of California has a legal process that decides who will take of your property and how it will be disposed. That process is called a Conservatorship. To ensure that this does not happen to you make sure that you have a Durable Power of Attorney filed and ready so that you control your property even when you do not have the capacity
3. Organization and all decisions that you want made with your life completed.
I have more than a decade of legal experience in handling even the most complex of probate and estate planning cases. At my firm, I provide one-on-one attention so you will never feel overwhelmed or in the dark regarding the status of your case. My genuine interest and compassion for my clients is evident in everything that I do. You can trust me to utilize all my resources to protect your rights, interests, and assets, no matter what happens. We are constantly updating all of our documents to ensure that your trust, instructions to financial institutions and powers of attorney are in compliance with legal standards and that your assets will be transfered to the people and charity orginizations that you designate. We want to make sure that your beneficiaries are not burdened with a complicated legal process and that they do not have to hire additional lawyers or have to be at the mercy of the courts.
AHCD – Instructs the Hospital where you are being treated on how you want to be treated and cared for. Gives the power to an Agent to be your representitive and enforce your instructions legally. Without this document someone else will decide how you are treated and whether you will be removed from life support or not — Please see case of Terry Schiavo.
An Advanced Health Care Directive:
- Designates an Agent that will enforce your rights while you’re under the care of a physician and are considered disabled and cannot communicate your treatment to your doctor or attending physician. Always choose a person that lives close by and is able to be at the hospital if you have an emergency and make sure to tell them. Your Life Cards that you carry should also be updated with your agent’s name and contact information and give access to health care professionals to your actual Advanced Health Care Directive.
- Duration – When does the power of the agent go into effect and when does it expire. The power usually goes into effect at the signing of the document and expires after the death of the individual. The directive from you is in effect whether your agent is there or not because the document itself instructs the attending professionals in how you wish to be treated. You really do not put the burden on your Agent they just do what you ask of them and make sure that it is carried out.
- Care Instructions – this ranges from the type and facility of care that you will need such as assisted living or psychiatric care if you develop Alzheimer’s or some other disability. If you become unresponsive and you are on life support when is it okay to take you off and not resuscitate. This all has to do with the very famous Terry Shivo case where two sets of family legally battled over pulling the plug on life support. Again the clearer you can be then the easier it will be to just follow the instructions and not put the burden on to your agent.
- Medical Record Release information – Gives the power to your agent to release confidential information to care givers that will help them with your care.
- Pain Relief – Gives the power or non-power to administer pain relief so that you can be as comfortable as possible when going through a crisis.
- Grant Releases – Agent can sign waiver or release of liability so that medical personnel can perform duties while under their care.
- HIPAA – Representative – Agent has authorization to release all HIPAA or confidential medical information to medical professionals in the case of emergency care.
- Court Proceedings – If any court proceedings are to be taken while you are under care your Agent can instruct the court on your wishes and may act in your place. Your agent may be appointed guardian if necessary.
- Agent has power to instruct Third Parties on Health issues, Agent cannot be found to be liable and the Agent may be reimbursed for any expenses that are incurred for being Agent.
What is HIPAA and why is it Important?
HIPAA stands for the Health Insurance Portability and Authorization Act. It can be broken down into two categories, Protection and Portability. Portability means that if you have insurance through your employer and you lose your job it gives you the right to transfer that insurance and keep it. Protection means that your Protected Health Information which is any medical record or Medical payment information can only be disclosed by either your Authorization or your agents.
Why is it Important?
This becomes very important when you are hospitalized and care givers need information from any number of doctors and care givers that you have seen such as Dentists, Psychologists, Psychiatrists, specialists, chiropractors, and pharmacists. To make sure that this valuable information is used and does not violate any protected health information a simple HIPAA Authorization Form can be used to grant this release.
What is a HIPAA Authorization Form:
- Designates trusted individual to receive your protected health information for emergency situations. The person picked should probably be your Agent of your Advanced Healthcare Directive and subsequent successors.
- Designates all healthcare providers such as physicians, podiatrists, chiropractors, or osteopaths), psychiatrists, psychologists, dentists, therapists, nurses, hospitals, clinics, pharmacies, laboratories, ambulance services, assisted living facilities, residential care facilities, bed and board facilities, nursing homes, medical insurance companies or any other health care providers or affiliates to use, release and disclose any of my protected medical information.
- Termination – the form will only terminate by written revocation by you.
- 3rd Party Liability release – Any entity acting upon this form shall not be held liable.
HIPAA Authorization Form should be part of your complete Estate Plan. The form should also be part of your Spouses protected documents as well as any children. The documents should be stored electronically with a corresponding Emergency Health Card so that First Responders can have access to vital Protected Health Information.
What is a Durable Power of Attorney and Who Needs One?
A durable power of Attorney is a legal document that you sign that gives power to an Agent (someone you trust to act in your best interest, spouse or independent fiduciary) to take action for you because you can’t because you are incapacitated from a medical emergency. It’s “durable” because it lasts even though you have become incapacitated.
Why would you need it?
If you are involved in medical emergency or become suddenly ill someone will still need to pay the bills, make deposits, handle legal and insurance claims, and handle benefits paperwork.
If you don’t have it someone will have to go to court and ask a judge to act as Conservator or as a Guardian. This is all very public and could be potentially embarrassing. If there is some type of conflict about who is being appointed, lawyers are hired, money is spent and there are even more delays and stress.
Who Needs It?
Anyone who owns property, has a bank account, has health insurance, own securities, own a business, have family, etc.
Scott is a single man who owns a Santa Rosa, California Real Estate Company and has a car accident on his way to work. He goes into a coma. He owns several properties and financial accounts. In order to pay the bills, his girlfriend of two years will have to get a court order to pay the mortgage and mange his business. Scott’s sister never liked the girlfriend and opposes the order.
John and Sue have been married for 25 years and own a nice Santa Rosa home. Sue is diagnosed with Alzheimer’s and needs immediate care in a facility. In order to pay for the long term care that Sue desperately needs John will need to sell the house. Sue because of her condition can’t sign the paperwork. John will have to go to court to sell the house.
How do you use it?
The document once signed is in effect and can be used at any financial institution. You want to make sure that the document is signed prior to the incapacity of the individual. You also want to make sure that the Agent (someone you trust to act in your best interest, spouse or independent fiduciary) has access to the document. The Northern California Estate Planning Attorney that you use should have electronic storage available so that your Agent can access the document when needed. The North Bay Estate Planning Attorney that you use should also have a system alerting his firm so that he can help you when you need it the most.