Tag: Power of Attorney

Do You Have a College Student? Important Healthcare, Financial, and Educational Documents That They (and You) Need

August is upon us and you may soon be sending children off to college. If your child is age 18 or older, you and your child will need to take some simple steps so that, in the event of an emergency, you will be able to make health care and financial decisions for your child and have access to your child’s medical information and financial accounts. The same is true if you are to have access to your child’s educational records.

Medical Information. Once your child reaches age 18, your child is deemed to be an adult by law and you no longer have a legal right to make health care decisions on behalf of your child or to access your child’s health care information. As a result, if you have an adult child, your child must execute certain legal documents naming you as his or her health care agent and permitting you to access his or her medical information:

  1. Your child must execute a “Health Care Proxy” naming you as his or her agent for health care decisions. In this document, your child authorizes you to make health care decisions on your child’s behalf if he or she becomes unable to make or communicate such decisions him or herself. The child may also share his or her own wishes regarding medical treatment.
  2. Your child must also sign a “HIPAA Authorization Form.” The Health Insurance Portability & Accountability Act of 1996 (generally known as “HIPAA”) protects the privacy of an individual’s medical information, and health care providers may require written consent from a patient to share information with family members, including parents of an adult child. Your child’s college or university may also have policies in place preventing it from sharing medical information without the student’s consent. This form will serve as written permission authorizing those providing health care services to your child to share medical information with you as your child’s health care agent.
  3. In addition, you should be in contact with the health services department of your child’s college or university. The institution may provide its own form for authorizing the release of medical information that can be kept on record with the institution’s health services department.

Financial Accounts. If you are to have the ability to act on behalf of your adult child with respect to financial matters, your child also needs to execute a “Durable Power of Attorney” naming you as your child’s agent with respect to the child’s assets and finances. If your child is attending college away from home, is studying abroad, or undergoes a medical emergency, it may be useful for you to access your child’s accounts on his or her behalf. This allows you to pay bills for a child out of their accounts, make deposits and open or close accounts. In addition, a durable power of attorney allows you to handle other financial tasks for the child, like filing tax returns or renewing a lease.

Educational Records. Finally, the Family Educational Rights and Privacy Act (FERPA) protects the educational records of a child who has turned 18 or is enrolled at a postsecondary institution from access by his or her parents. If the child’s parents claim the child as a dependent on their tax returns, the parents may still access the child’s education records without the child’s consent. However, institutions may be reluctant to allow access to education records for any child over the age of 18 without a “FERPA Waiver” signed by the child, regardless of their status as a dependent. If you would like to have access to your child’s educational records, you should contact the institution to request a FERPA Waiver form.

Article By John H. Ramsey and Kerry L. Spindler of Goulston & Storrs

For more public education and services legal news, click here to visit the National Law Review.

2022 Goulston & Storrs PC.

Five Suggestions for Elder Care If You or Your Elderly Parents Have “One Foot on the Banana Peel”

Shana and I recently had a new client, “Jane,” that came to see us because she was concerned about her elderly parents. Both are in their 90s and although they are still living independently, she is noticing both a physical and cognitive decline in both.  She described them as having “one foot on the banana peel,” recognizing that they are one fall or illness away from no longer being able to maintain their current lifestyle.

As with many of our clients, they are resistant to making any changes and she is worried about what will happen. Jane lives a distance from her parents, works full time, and has her own teenage children. She came to us for assistance in understanding what she can do to help them. Here are five suggestions we made for her:

1. Changes to Powers of Attorney and Health Care Proxy

Jane’s parents’ existing legal documents have each other as primary agents and neither is able to act in that capacity. Jane is handling their bill paying and taking them to MD appointments and it will be easier for her to continue this role with the appropriate legal documents naming her as the primary agent.

2. Financial Planning

Jane’s parents have limited liquid assets and own their home. Their monthly income does not cover their expenses, so they are drawing from those assets every month. This plan will not work long term if either needs to hire a caregiver to help them at home due to the high cost. We helped Jane to understand the realities of paying for care and the limited coverage of Medicare. We also explained the criteria for Medicaid eligibility, the application process and the problem with using Medicaid to pay for home care. We stressed the importance of Jane and her parents exploring alternative living situations that may better meet their needs while they still had funds and ensuring that they found a facility that would allow them to spend down to Medicaid when their funds are exhausted.

3. Home Evaluation

Jane’s parents live in a bi-level home with stairs to enter and Jane is very concerned about their safety. We recommended a home evaluation to determine what modifications can be done to the home to make it safer. These modifications can be simple such as a tub bench, so they don’t have to step over the tub to get into the shower or more complex such as a stairlift or emergency alert system.

4. Medication Management

Jane’s parents have multiple medical conditions and each takes many medications. They often forget to take their medications or take them incorrectly. This is a very serious issue and often leads to unnecessary hospitalization which can precipitate a downward spiral. We discussed a variety of options, including a visiting nurse and an automatic medication dispenser.

5. Take a Deep Breath

As with all our clients, Jane loves her parents and wants what is best for them. However, her vision of what is best for them doesn’t necessarily coincide with their vision. As a caregiver-child myself, I can very much relate to her frustration of having a clear idea of what will improve an elderly parent’s quality and/or quantity of life and having that parent refuse to make a change. Sometimes small changes are acceptable and they can make a difference and prolong stability. But very often the best we can do is to plan for the emergency and know we have done the best we can.

©2020, Norris McLaughlin & Marcus, P.A., All Rights Reserved

For more on caring for elderly relations, see the National Law Review Family Law, Divorce & Custody type-of-law section.

Securing Your Pet’s Future with Estate Planning

Have you thought about what would happen to your pet in the event of your death or incapacity? Approximately two-thirds of American households own a pet, and while we have many people in our busy lives, our pets have only us. Pet owners often lament that beloved animal companions don’t live as long as we do, but they still warrant consideration in our estate plans because we don’t know what the future will bring. This is especially true for animals with longer life expectancies or higher costs of care, such as dogs, cats, horses, parrots, turtles and animals with special needs.

Without provisions for your pet in your living trust, in the short term your pet could go days at home without food and water, and could feel panicked, distressed or abandoned. In the long term, your pet could end up with someone you don’t want them to end up with, or at a shelter where he or she could be euthanized. Contrary to popular belief, informal arrangements are generally not legally enforceable and simply adding your pet to your will often isn’t enough. Your pet will need care long before your will is probated, and wills offer no ongoing control or oversight for your pet, the caregiver or funds left for your pet.

Including the following documents in your estate plan can help to ensure that someone has access to your home and authorization to care for your pets in the short term, and can ensure that you decide who will ultimately care for your pets, and how they will be cared for, if you die or become incapacitated.

Pet Trust

A pet trust is a great way to ensure that your pet is cared and provided for after your death. The pet trust may be a part of your existing trust or may be a completely separate trust. It allows you to name the caretaker of your pets and creates a fiduciary obligation on the named caretaker to care for your pet in the manner described in your trust. You will provide money for your pet to be cared for, and the trustee of the trust will disburse funds to the caretaker or directly to a service provider to pay for your pet’s care. The trustee is similarly under a fiduciary obligation to ensure that the trust funds are used only for the purposes described by your pet trust.

A pet trust also allows you to name successive caretakers in case your preferred caretaker becomes unable or unwilling to take care of your pet, for example, if he or she has a change in life circumstances (e.g. medical concerns or new family obligations, among other reasons). Without a pet trust, on the other hand, your pet becomes the legal property of the person who assumes care of the pet, and the new owner may make decisions about the pet’s future that you might disagree with. If the new owner doesn’t make any formal arrangements, your pet’s future could be in limbo if something happens to the new owner. If you want to maintain control over the succession of caregivers for your pet, a pet trust drafted by an experienced estate planning attorney is crucial and affords the best long term protection for your pet.

Durable Power of Attorney for Pet Care

The Durable Power of Attorney for Pet Care allows you to authorize someone else to seek medical care for your pet and specify to what extent the agent may act on your behalf. This document can also be used by a pet caretaker while you are away on business or vacation. Alternatively, if your own Durable Power of Attorney is “effective immediately” rather than “effective upon incapacity” (sometimes called “springing”), provisions for your pet may instead be added to your own Durable Power of Attorney.

Care Instructions

Pet care instructions will accompany the instructions in your pet trust. It is important to have these as a separate document that will be incorporated into your pet trust by reference so that you can change your pet care instructions as your pet’s needs and tastes change without having to update your trust. The pet care instructions should be reviewed and updated frequently to ensure that food requirements, medical information and emergency contacts are up to date. It’s also a good idea to include information about what your pet likes and doesn’t like, any quirks your pet may have, and generally anything else you would want someone caring for your pet to know. This versatile document, like the Durable Power of Attorney for Pet Care, can also be left with someone caring for your pet while you are away on business or vacation.

Importantly, if your pet is ever in a situation where the pet will need to be adopted to a new family, these instructions provide valuable information to the agency that will assist them in making sure a first match is successful, rather than, for example, adopting your pet to a family with young children only to have your pet returned when it becomes apparent that your pet is fearful of children. An owner’s death is stressful for an animal, so ensuring a successful first match with an adopter is imperative.

Wallet Card

This extra protection will immediately notify someone that you have pets at home if you are found to be deceased or incapacitated somewhere other than your home. Similar to adding “in case of emergency” contacts to your phone, having information in your wallet about who should be contacted to quickly provide care to your pets in such a situation can be the difference between your pets being cared for quickly or being home alone for days without food or water.

© 2019 Varnum LLP

Article by Rebecca K. Wrock of Varnum LLP.
For more on estate planning, please see the National Law Review Estates & Trusts page.

Understanding Post-AIA Power of Attorney Procedures –America Invents Act

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Applicants identified upon a U.S. patent application’s filing can impact the ownership rights to the patent application throughout prosecution.  Prior to implementation of relevant aspects of the America Invents Act (AIA) on September 16, 2012, patent application Applicants could only be Inventors.  Conversely, applications filed on or after September 16, 2012 can have Inventors or Assignees as Applicants.  The choice of Applicant – Inventors or Assignees – upon filing in post-AIA applications affects how Power of Attorney can be properly established before the U.S. Patent and Trademark Office (USPTO).

Pre-AIA patent applications filed before September 16, 2012 can have Power of Attorney granted by Inventors or Assignees under Rule 32, provided that the requirements of Rule 3.73 are satisfied.  In contrast, post-AIA applications filed on or after September 16, 2012 can be filed with Inventors or Assignees as the Applicant, with Rule 32 requiring a Power of Attorney to be signed by either the “Applicant” or “Patent Owner.”  However, an Assignee only becomes the patent owner after the application issues as a patent.  Thus, in order to take over prosecution in a post-AIA application, the Assignee must either initially be listed as or later formally established to be the Applicant for Power of Attorney to be granted on behalf of the Assignee.

In circumstances where a post-AIA application’s Applicant is identified upon filing as the Assignee, the Assignee may execute a Power of Attorney, and it can be filed without the need to file any separate papers to satisfy Rule 3.71 or Rule 3.73.

When a post-AIA patent application is filed without listing the Assignee as the Applicant (i.e., because the Inventors are listed as the Applicant) or when the Assignee changes during the course of prosecution, Rule 3.71 or Rule 3.73 must be satisfied for the Assignee to establish a Power of Attorney before the USPTO.  Namely, a statement under Rule 3.73(c) and a Power of Attorney must be filed.  However, the Assignee must first be identified as an Applicant.  Currently there are two ways for an Assignee to become an Applicant when not so listed upon initial application filing.  First, an Applicant can be added to the existing list of Applicants.  Alternately, all Inventors can be removed as the Applicant and be replaced with the Assignee as the Applicant.

A change in an Applicant can be accomplished by filing a supplemental Application Data Sheet (ADS), fulfilling the Rule 3.73(c) requirements including a showing of ownership.  A chain of title can be demonstrated through executed assignment(s) and a statement specifying where documents verifying the chain of title from the original owner to the assignee are recorded in the assignment records of the USPTO by reel and frame number.  After adding the Applicant, Rule 3.71 or Rule 3.73 can be satisfied by filing a statement under Rule 3.73(c) and filing a properly executed Power of Attorney, thereby appointing the designated patent practitioner.

Accordingly, administrative burdens on the USPTO, on Assignees, and on Assignee representatives can generally be reduced by filing post-AIA applications listing the Assignee as the Applicant, should the Assignee be known at the time of filing.

Colleen Witherell also contributed content for this article.

ARTICLE BY

Christina Sperry
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.