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Be Cautious of Generic Health Care Proxy Forms

Doctors, nurses, and hospital staff work hard to care for their patients when they are sick or hurt. However, even when a procedure is done to save a patient’s life, a hospital cannot act without patient consent. If a patient cannot speak for themselves and express their wishes, the hospital relies on what is known as a health care proxy form.

If you have ever been admitted to the hospital, you have likely been asked to sign a health care proxy form. Hospitals use proxy forms to obtain consent in advance from patients in case they become incapacitated and medical professionals need to administer medication, perform surgery, or otherwise treat the patient. However, the generic version used by most hospitals can fall short for many patients and may infringe upon their autonomy. Always be cautious when you sign a boilerplate document.

What Is a Health Care Proxy?

A health care proxy is a form that a patient uses to name an agent who will carry out their wishes regarding medical care if the patient cannot speak for themselves. Having a health care proxy specifically tailored to your needs can be important. For example, you can outline what kind of treatment you do — or do not want — if you become terminally ill or are in a coma; at the same time, you can indicate other wishes, such as whether you would want pain medication administered or your organs donated.

The agent only has the power to make decisions on the patient's behalf once a doctor confirms that the patient requires medical attention but cannot advocate for themselves. The agent's power ends when the patient can once again state their treatment preferences. Appointing an alternate agent is a good idea, too.

What Is the Problem with Signing a Generic Health Care Proxy?

A health care proxy is important because it instructs your agent to speak for you and, if well-written, it will give specific instructions about what medical treatments you want and which treatments you refuse. An estate plan is not complete unless it includes a health care proxy form.

The problem with relying on the generic health care proxy form the hospital provides is that, in some cases, these forms will not take your individual wishes into account. Every person treated at the emergency room or admitted into the hospital signs the same health care proxy form. Anything that could have a life-or-death consequence should be tailored to you and specifically address your needs.

If you have a health care proxy, inform the hospital staff so they can make the document a part of your medical record.

How Can I Complete My Own Health Care Proxy?

Part of creating an estate plan is having a health care proxy drafted. If you have not created an estate plan or health care proxy, contact your attorney to draft the estate planning documents that you need.

What Is the Difference Between a Living Will and a Do-Not-Resuscitate Order?

It is a very good idea to create advance directives in order to plan for the possibility that you may one day be unable to make your own medical decisions. In doing so, there can be confusion about the difference between a living will and a "do-not-resuscitate" order (DNR). While both these documents are advance medical directives, they serve different purposes.

A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone -- you can always revoke it at a later date if you wish to do so.

When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options. 

A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

In addition to a living will, you will also need a health care proxy or broader medical directive. 

What's a Health Care Proxy and Why Do I Need One? 什麼是醫療授權書，為什麼我需要這份文件？(中英對照)

If you become incapacitated, who will make your medical decisions? A health care proxy allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out, and it is especially important to have a health care proxy if you and your family may disagree about treatment. Without a health care proxy, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so.

In general, a health care proxy takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care proxy itself. If you later become able to express your own wishes, you will be listened to and the health care proxy will have no effect.

If you are interested in drawing up a health care proxy document, contact your attorney.

當你失去能力時，誰會為你作出醫療上的決定？醫療授權書允許您指定某人來為您作出醫療上的決定。這將確保您的醫療指示得以執行，尤其是如果您和您的家人對治療的方式有不同的看法，那麼醫療授權書尤為重要。如果沒有醫療授權書，您的醫生可能會為您提供一些您不想接受的治療。

一般而言，醫療授權書僅在您需要治療並且醫生確定您無法表達您的治療意願時才生效。這完全取決於特定的州的法律和醫療授權本身的條款。如果您以後能夠表達自己的意願，您的意願會被聽取，而醫療授權書將不起作用。

如果您有興趣制定醫療授權書，請跟資產規劃律師聯繫。

Estate Planning Review for 2019 2019年資產規劃審查 (中英對照)

“While clients often focus on the market, goals and portfolio performance, it never hurts to make sure estate planning items are correct, particularly heading into the new year.”

Your estate plan has a big impact on your finances and should be considered as important as your investment portfolio, says Wealth Management in the recent article “Eight Simple Estate Planning Review Items for 2019.”

Here are the eight items that need your attention:

Beneficiary designations. When was the last time you checked these? Beneficiary designations are usually looked at when an account is opened, and often that’s the last time people see them. Look at beneficiary designations for tangible assets, like homes, cars or collectibles. Check legal documents, including bank accounts and insurance policies.

Digital asset designations. This is a relatively new area, but very important. Even if you don’t own any cryptocurrency, chances are good you have assets like photos, reward points, websites and more. Each social media platform has a different policy for how accounts are treated on the death of the owner. You’ll need an inventory and may want to use an online service for managing your digital assets after you die.

Trust funding. This is where many estate plans fall apart. Funding trusts often requires changing titles on bank accounts, homes and other assets into the name of the trust. Major purchases, like a boat or second home, also need to have their titling corrected, so they correspond to trusts.

Documents for adult children. When your children turn 18, they are legally adults and you do not have the legal right to get information or make decisions on their behalf. If you don’t have HIPAA releases, Power of Attorney, and other documents, you may find yourself unable to help in an emergency.

Keep up with life changes. Review your estate plan with an eye to changes in your life: births, deaths, marriages, divorces, big purchases, etc. If you haven’t met with your estate planning attorney or had a phone conversation in a few years, make an appointment now for a review.

Secure photos and memories. How many times have we watched dramatic images of fires, floods, and earthquakes in 2018? Videos, photos, family heirlooms, and artifacts and other irreplaceable items should be stored in some digital format, or in the cloud. If the family includes artists, take photos of paintings or sculptures so at least you have an image of the item should it be destroyed.

Discuss wishes with loved ones. One of the biggest challenges after someone passes, is knowing what they wanted to be done with personal possessions. If you have every Beatles album, unopened, what do you want to happen to your collection? Make inventories and then tell your family what you’d like to have happen with your possessions. You can create a “Legacy Letter” and put it down on paper. It’s not legally binding, but it will give your family some direction.

Prepare for incapacity. This is not everyone’s favorite task, but necessary. If you were conscious but not able to speak, what information would your family need? Work with your estate planning attorney to create the necessary legal documents, including medical directives, and tell your family members where they are located. Some families keep certain documents (like a Do Not Resuscitate or lists of medications) on the refrigerator, so that Emergency Responders can gain access to important medical information quickly in an emergency.

Yes, it’s a good-sized list of to-dos’, and you won’t get it all done in January. However, start in January 2019, so you and your loved ones enjoy the protection you need.

Reference: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

“雖然客戶往往關注市場，目標和投資組合表現，但確保資產規劃內容是正確的總沒有害，特別是進入新一年。”

Wealth Management在最近的文章“Eight Simple Estate Planning Review Items for 2019.”

中表示，您的資產計劃對您的財務狀況有很大的影響，應被視為與您的投資組合同樣重要。

以下是需要注意的八個項目：

指定受益人。你最後一次檢查指定受益人是什麼時候？這通常是在你開立帳戶時查看，而這亦通常是最後一次。查看有形資產的指定受益人，如房屋，汽車或收藏品。檢查法律文件，包括銀行賬戶和保險單。

數碼資產的指定。這是一個相對較新的領域，但非常重要。即使您沒有任何加密貨幣，也有可能擁有照片，獎勵積分，網站等資產。每個社交媒體平台都有不同的政策，用於擁有去世後如何處理帳戶。您需要一個庫存，並希望在您去世後別人可使用於網絡上來管理您的數碼資產。

注資信託。這是許多資產計劃敗筆的地方。資金信託通常要求將銀行賬戶，房屋和其他資產的持有人更改為信託的名稱。大眾購買，如船或第二個家，也需要更改業權以跟信託對應。

給成年子女的文件。當您的子女年滿18歲時，他們在法律上已是成年人，您沒有合法權利取得信息或代他們做出決定。如果您沒有HIPAA，授權委託書和其他文件，您可能會發現自己無法在緊急情況下提供幫助。

跟上生活的變化。檢查您的資產計劃，關注您生活上的變化：出生，死亡，婚姻，離婚，大量買賣等。如果您已幾年沒有與您的資產規劃律師見面或進行電話會談，請現在預約並審查。

保護照片和記憶。我們在剛過去的2018年看到多少 火災，洪水和地震這些戲劇性的圖像？視頻，照片，家傳之寶，工藝和其他不可替代的物品應以某種數碼形式或云端存儲。如果這個家庭包括藝術家，可以拍下圖畫或雕塑的照片，這樣萬一被摧毀至少你有一個圖像。

與親人討論意願。在一個人去世後所面臨的最大挑戰之一就是知道他們想要用個人財產來做些什麼。如果您有未拆開的披頭四專輯，您希望在您的收藏怎樣？製作庫存，然後告訴你的家人你的財產該怎樣處理。您可以建立一份“遺書”並將其寫在紙上。它沒有法律約束力，但它會給你家人一些方向。

為喪失能力作出準備。這不是每個人喜歡的任務，但是必要的。如果您有意識但無法說話，您的家人需要哪些信息？與您的資產規劃律師合作，建立必要的法律文件，包括醫療授權書，並告訴您的家人他們所在的位置。有些家庭保留某些文件（如“不要急救”或“藥物清單”），以便緊急救援人員能夠在緊急情況下得知重要的醫療信息。

是的，這是一個很好的待辦事項清單，你不會在一月份完成所有工作。但是，從2019年1月開始，您和您的親人該得到您需要的保障。

參考: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

Add This to Your New Year’s Resolutions

“It’s one of the most important conversations that none of us want to have.”

The conversation with loved ones about growing older and the chances that we or our spouses are going to need help with the activities of daily living, is something that needs to be talked about before being faced with that situation. It’s difficult at best, says The Des Moines Register in the article “In 2019, resolve to have a difficult conversation,” but very necessary.

The person who is contemplating needing help, may want to start the conversation but the person who may be called on to help may find it too difficult to consider. Who wants to think about their parents getting frail and needing help going to the bathroom? No one.

The person who is starting to feel the impact of aging, may already be aware of some limitations. However, talking with their children or potential caregivers, may change the conversation from “someday” to “soon.” The loss of independence is one of the big milestones, just as gaining independence is a milestone earlier in life. That’s a hard thing to accept for both sides.

Those who have lived through this process of needing to become caregivers, say that it would have been easier, if they would have known what their loved ones wanted. So, would have been knowing what kind of help their loved ones could afford. It’s better to have time to research available resources in advance, rather than operating in crisis mode.

This is what your conversations need to address:

• Medications, physical health, emotional well-being and health care providers
• Their wishes, if their health declines slowly or rapidly. Do they want to stay at home? Who would they want to help with daily care?
• Finances: Can they afford to pay for care at home? Has any Medicaid planning been done? What government programs are they eligible for? Do they have a CPA or financial advisor?
• Estate plan: Where is their Last Will and Testament? Is there a Power of Attorney, Living Will or Medical Directive in place? Who is their estate planning attorney?
• Documents, including birth certificates, Social Security, insurance cards, safe deposit box keys, computer passwords, etc.

We prefer to think we’ll live a long healthy life and then die peacefully in our sleep, with no advance notice. However, that is not what happens to most Americans. Seven out of 10 people over age 65 will need help from others at some point, and most will need it for at least three years. Therefore, make having this conversation part of your New Year’s resolutions. When the time comes, you and your caregivers will be glad that you did.

Reference: The Des Moines Register (Dec. 19, 2018) “In 2019, resolve to have a difficult conversation”

Are You Sure You Want THAT in the Cloud? 你確定你想要在雲端中嗎？ (中英對照)

“People are storing important documents, such as wills and medical directives, online. While convenient, there are a few things to keep in mind before you open another online account, experts say.”

There are some clear benefits to storing your will and documents online. You and your spouse (or other authorized people) can access them anytime, from anywhere. We are used to putting our lives online.  However, there are also some downsides to consider before doing so, according to a helpful article from CNBC titled “Here’s what you need to know before storing your will online.”

It’s good to have all your important documents in one place. Make sure that the people who will need access, such as executors, know that you’ve done so or the cloud storage may well be pointless.

Online storage can also facilitate family conversations about estate planning. Even tech savvy adult children who scoff at parents who don’t engage in social media, will be impressed by a decision to go digital.

 However, there are pitfalls.

The Revised Uniform Fiduciary Access to Digital Assets Act allows those who are appointed as fiduciaries to access some digital assets in the 45 states (and D.C.) where the law is in place, according to the Uniform Law Commission. ULC is a state-supported organization that brings uniform laws to different jurisdictions.

 However, unless you give full access to your digital accounts to your attorney or executors, they will not have the right to open these accounts. They might be able to go online to bank accounts but not to your social media accounts or any portals containing important documents.

You need to give an executor access. That means more than your password, log in information and answers to security questions. They will also need a legal document granting them access to the accounts.

Check with your estate planning attorney to learn your state’s requirements. Whether or not your estate planning documents are in the cloud, you probably have digital assets. Make sure your will is updated.

Resource: CNBC (July 26, 2018) “Here’s what you need to know before storing your will online”

“人們在網上存儲重要文件，如遺囑和醫療指令。雖然方便但專家說，在開設另一個在線賬戶之前，有一些事情要記住。”

網上存儲您的遺囑和文件有一些明顯的好處。你和你的配偶（或其他獲授權人員）可以隨時隨地看到它們。我們習慣於把自己的生活放在網上。但是，在這樣做之前還有一些缺點需要考慮，根據CNBC的一篇文章 “Here’s what you need to know before storing your will online.” (這是您在網上存儲遺囑之前需要了解的內容)

將所有重要文件放在一個地方是件好事。但是確保需要取用的人員，例如遺囑或信托執行人，要知道您已經這樣做了，否則存儲在網上可能會毫無意義。

網上存儲還可以促進有關資產規劃的家庭對話。即使是那些嘲笑父母不會參與社交媒體的成年子女，也會對網上存儲的決定感到佩服。

但是，有陷阱。

根據統一法律委員會(The Uniform Law Commission)的規定，修訂後的統一信託獲取數據資產法案(The Revised Uniform Fiduciary Acess to Digital Assets Act)允許被指定為受託人的人獲得法律所在的45個州（和D.C.）的一些數據資產。ULC是一個由國家支持的組織，為不同的司法管轄區提供統一的法律。

但是，除非你給於你的律師或遺囑執行人有權取得您的數據帳戶，否則他們無權打開這些帳戶。他們可能可以看到網上銀行帳戶，但不能進入您的社交媒體帳戶或包含重要文檔的任何網站。

您需要授予執行者進入權限。這意味著不僅僅是您的密碼，登錄信息和安全問題的答案。他們還需要一份法律文件，授予他們取得帳戶的權限。

請諮詢您的資產規劃律師，了解您所在州的要求。無論您的資產規劃文件是否在網中，您都可能擁有數據資產。確保您的意願是最新。

參考: CNBC (July 26, 2018) “Here’s what you need to know before storing your will online”