When a person becomes disabled or incapacitated, he or she is often unable to make personal and/or financial decisions. If you cannot make these decisions, someone must have the legal authority to do so for you. Otherwise, your family must apply to the court for appointment of a conservator for either your person or your property, or both.

At a minimum, you need at least two documents in place, a Power of Attorney for Finances and a Health Care Directive. A broad Durable Power of Attorney that will allow agents to handle all of your property if you become incapacitated will keep your family out of the court process and allow them to pay your bills. Equally important is the appointment of a decision-maker for health care decisions which can be accomplished through an Advance Health Care Directive (in California). This document may be called other things in other states.

Alternatively, with regard to your property, a fully funded living trust can ensure that your property will be properly managed, pursuant to the highest duty under the law that of a trustee. It is important that you choose your trustees and agents carefully and that they are people you trust who are capable of handling your affairs the way you would.

You will also want to make sure you address the release of your medical information to your loved ones. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent a written authorization from the patient, a health care provider cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The penalty for failure to comply with these rules is severe: civil penalties plus a criminal fine of $50,000 and up to one year of imprisonment per occurrence. It’s even worse if the disclosure involves the intent to use the information for commercial advantage, personal gain, or malicious harm.

Since these HIPAA rules became effective, most doctors, hospitals and other health care providers now refuse to release any information absent a release from the patient. For example, hospital staff will go so far as to refuse to disclose whether one’s spouse or parent has been admitted to the hospital. The inability to receive information about a loved one could become very troubling when the information concerns treatment as part of long-term care. The regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that people you designate in addition to your personal representative can access this information.

About Brenda Geiger, J.D.

Brenda is a Trusts & Estates Attorney with her primary office located in Carlsbad, California (she also has satellite offices in Costa Mesa and La Jolla). Brenda graduated from the University of San Diego School of Law where she served as an Editor on the San Diego International Law Journal and published a scholarly article in the Law Journal. Brenda is also a published author of many articles and 3 books on estate planning. The most recent book was released in June of 2009 entitled “Safeguarding the Nest” available at www.SafeguardTheNest.com. Her passion is helping families protect their children and keeping families out of the court process at incapacity and death. On a more personal note, Brenda is married to Len, the CEO of the San Diego based web hosting company WebIntellects, Inc. and they have two small children, Lenny and Taylor. They also have two dogs, Starsky and Semper (their lovable German Shepherds)

For more free articles and reports, go to www.SmartMomLawyer.com. To request a special planning meeting with Brenda, call (760) 448-2220 or email us at info@SmartMomLawyer.com.