Frequently Asked Questions

Health Care Power of Attorney

• What Is A HIPAA Wavier?

The HIPAA medical privacy law went into effect in 2003. It provides that anyone having medical information about you may not share it with anyone absent a written waiver.

Doctors and hospitals, with justification, have interpreted this to mean that they cannot even speak to family members unless there is a written authorization. Spouses, parents of young adults, siblings, and children of aging parents have experienced not being able to obtain medical information concerning their family members and loved ones.

The solution is a properly drafted Health Care Power of Attorney with a specific waiver of the HIPAA restrictions. Signing a HIPAA waiver form at your doctor’s office is not enough to protect you and your family.

• Do I Need A Health Care Power Of Attorney?

Every adult (over 18) should have a properly drawn Heath Care Power of Attorney. So long as it has the appropriate HIPAA waiver, it authorizes a person or persons to receive information about your medical condition and to make health care decisions for you.

The decisions your Agent can make include admitting you to medical facilities, hiring medical personnel, authorizing diagnostic tests, approving medical procedures, allowing feeding tubes, permitting resuscitation or anything else you could decide. Your Agent can also ensure that you do not receive unwanted medical treatments, feeding tubes, respirators, resuscitation, etc.

Without an authorized Agent, you and your loved ones lose control. The HIPAA law limits disclosure of information and other laws restrict the ability of loved ones to carry out your wishes. A proper Health Care Power of Attorney puts you and your Agent back in control of your health care.

• Terri Schiavo Tragedy – Don’t Let It Happen To You

The tragedy of the Terri Schiavo case could have been avoided if she had prepared an Advanced Medical Directive expressing her wishes if she were left in a persistent vegetative state. Instead, there were years of court battles, endless publicity, and family strife. Terri was kept alive by a feeding tube for more than 15 years.

Surveys indicate that the majority of adults, like Terri Schiavo, do not have an Advanced Medical Directive. They too risk leaving family members fighting about appropriate medical care or, worse, receiving care contrary to what they would have wanted.

The Hugh Finn case (VA) and Ronald Mack case (MD) demonstrate that this is not an isolated incident.

It is important to communicate with your loved ones about health care issues, preferably through a proper Health Care Power of Attorney.

• What Is Probate?

Probate is the Court supervised process by which the Executor of the deceased’s estate gathers the assets of the deceased, uses those assets to pay the debts of the deceased, and then makes distribution to the appropriate beneficiaries.

The probate process is started by filing a Petition for Probate with the Court to have the Executor (now known as a Personal Representative) appointed. It is concluded by the filing of an Accounting listing all of the assets, income, and expenses of the estate. After the Accounting is approved by the Court, distribution is made to the beneficiaries.

Probate is necessary with or without a Will. However, there is no probate of jointly owned property, which passes by operation of law to a surviving joint owner. Nor is there probate of property which passes to a named beneficiary (such as in life insurance, IRA, TSP, 401(k), pensions, etc.). Probate can also be avoided by having your assets placed into a properly drafted Living Trust before you die.

Wills

• Who Needs A Will – Married – No Children

Many married couples without children believe a Will is not terribly important because there are no children and, thus, no worries about Guardians for the children or Trustees to manage inherited money for the children.

There is the further misconception that if one dies, the surviving spouse inherits everything.

The law in Maryland states that the surviving spouse inherits the entire estate only receives if there are no living descendants and no living parents of the deceased. If there are, the surviving spouse only gets one-half of the probate estate. The parents of the deceased spouse receive the other half.

The probate estate consists of all property solely owned by the deceased which was not directed to a specific person by a beneficiary designation, such as life insurance or retirement benefits.

Since most married couples want their spouse to inherit everything at the time of their death, a properly written Will is essential to carryout their desires.

• Who Needs A Will – Married With Children

Married couples with children have issues that only a written Will can handle.

Without a Will, the surviving spouse does not inherit the entire probate estate. If the children are minors, the children’s share of the estate goes into a Court-ordered trust, the Court controls the spending of the trust money, and the money is given to the child as each turns age 18.

If both parents die without a Will, the Court has no guidance on who should be the Guardian for their minor children or who should be the Trustee for the children’s money. Again, the trust money would be given to each child as each turns age 18.

A written Will allows you to leave the entire estate to your surviving spouse, name a Guardian and Trustee for your minor children, and hold the assets in trust to a more mature age than 18. It also enables you to set the terms of the children’s trust to promote important goals for their health, education and welfare

• Who Needs A Will – Single With Children

How could a single parent not get a Will done? The issue of Guardianship is paramount. Should that be left to chance or should the single parent make his or her wishes clear?

Further, the single parent should, in addition to naming a Guardian (whom the children will live with), name a Trustee to manage the assets and money left to the children. The written Will can also set forth the goals and terms for how the Trustee will manage the trust for the children.

Even a small estate, if properly managed, can make a positive difference in the life of a child who has lost a parent.

For instance, an estate of $10,000 would certainly be considered a small estate. Spent or invested wisely, it could be a good start at many things.

However, without structure and direction, it is easy for any size estate to be unnecessarily wasted or even to have a negative effect upon the child.

• Who Need A Will – Committed But Not Married

In the 21st Century, there are many relationships other than the traditional husband and wife. Without a written Will, unmarried parties have no rights whatsoever, often leaving the surviving party in dire straits.

In one case, a young woman learned during the day that her significant other had died in an automobile accident. By the time she arrived at his apartment where all of her clothes and possessions were, his parents had changed the locks. It was two days before she could retrieve her property.

Without a Will, the law directs all of the probate property to family members. The other party to the relationship is not entitled to any property from the probate estate and may suddenly be without a place to live, money to live on, or even the furniture and furnishings to which they are accustomed.

Having a written Will can protect your wishes for you and those with whom you have a relationship.

• Who Need A Will – Single With No Children

Single persons with no children obviously do not have all the issues of married couples, those with children, or even those in committed relationships. However, if they care what happens to their estate when they die, they still need a Will.

If a single person in Maryland dies without a Will, the entire probate estate goes to the parents, if living. There are many circumstances where this is not the desired result (tax implications or Medicaid issues for the parents).

If no parent is living, then the probate estate goes to the siblings (or the children of any then deceased sibling). If there are no parents or siblings living, the probate estate goes to the grandparents or their descendants (aunts, uncles, or cousins of the deceased single person).

A simple Will listing the people and/or charities whom you do wish to receive your estate, modest or otherwise, resolves all of these issues and allows you to decide these matters.

• Who Need A Will – Special Needs Beneficiaries

Many people want a part of their estate to be set aside to help someone with special needs. If this is not done correctly, it can hurt, rather than help, the intended beneficiary.

If the intended beneficiary is receiving, or is likely to receive, governmental assistance, the receipt of an inheritance may disqualify them from further assistance until (1) they have repaid all of the assistance they have already received, (2) they expend all the remaining funds on their own care, and (3) they re-apply and are accepted again.

A Will can include a Special Needs Trust for such beneficiaries which allows the setting aside of assets for such an individual without disqualifying them from governmental assistance. A Special Needs Trust cannot be used for the basic necessities, but can be used to provide extras such as additional medical and dental services, clothing, educational opportunities, travel and vacation opportunities, and the other extras in life.

• Naming Beneficiaries




A substantial portion of one’s estate is controlled by beneficiary designations. Life insurance, retirement plans, IRA’s, TSP’s, 401(k)’s, 403(b)’s, payable (or transfer) on death accounts, annuities, and certain other assets are distributed to named beneficiaries when the owner dies. The owner’s Will does not affect the distribution of these assets.

Many people need to update or correct designations. Life events, such as marriage, divorce or death may cause a beneficiary designation to be outdated.

It is also recommended that minor or young adult children not be named as primary or secondary beneficiaries. Most of them do not have sufficient life experience or maturity to manage large sums of money. Naming a trust for their benefit as a beneficiary is an alternative.

Also, naming as beneficiary someone receiving governmental assistance may disqualify them from further assistance. Again, naming a trust may be a better solution.