Legal Issues in Pulmonary Hypertension

Pulmonary Hypertension Support Group, Tampa, Florida

August 21, 2012 (Amended on May 23, 2013) 1) Essential Estate and Health Care Documents for You: You may need these documents to give yourselves, not a judge or defaulting law, the power to make decisions with regard to your property, body, children, and health care before, during, and after incapacity or death. In addition, these documents may minimize family conflict when you are not around.

a. Will:

i. Selects:

1. who will administer your estate when you die (the "personal representative")

2. who will inherit your property

3. who will serve as guardian for your children

ii. Governs how your body will be disposed (ex., burial, cremation, organ donation)

iii. Fully revocable

v. Must be submitted to probate (a court proceeding) for its terms to be enforced

iv. Upon probate, becomes part of the public record

To learn more about wills, click here.

b. Revocable Trust:

i. Avoids probate

ii. Controls how assets are distributed to the beneficiaries over time

1. Directs when a beneficiary may receive property from the trust (ex., upon completion of college or upon turning age 35)

2. Can withhold distributions to beneficiaries (ex., if beneficiary is in debt and the distribution would otherwise go to creditors or if the beneficiarytends to overspend)

iii. Names who will administer property in the trust (the “trustee”)

iv. Fully revocable and amendable

v. Avoid or minimizes involvement of guardianship court over property in the trust

vi. Usually a private document

c. Durable Power of Attorney:

i. Names someone you trust to act as your agent over your property

ii. Remains in effect before and during your incapacity

iii. Avoids or minimizes involvement of guardianship court over you and your property

iv. Fully revocable

To learn more about about durable powers of attorney, click here.

d.Designation of a Health Care Surrogate:

i. Names someone you trust to make health care decisions for you (the “surrogate”) only if you cannot make decisions yourself

ii. The surrogate has a duty to make health care decisions on your behalf (he has to do what you would want, not what he thinks is right)

iii. May ensure that health care decisions, some of which involve life or death and quality of life, are made in accordance with your religious / moral beliefs

iv. May express a wish to donate organs

v. Avoids or minimizes involvement of guardianship court over you

vi. Fully revocable

To learn more about designations of health care surrogates, click here.

e. Living Will:

i. Directs the providing, withholding, or withdrawal of life-prolonging procedures in the event that you have a terminal condition, end-stage condition, oris in a persistent vegetative state

ii. May address whether food and hydration are to be removed under the aforementioned circumstances

iii. May express a wish to donate organs

iv. Avoids or minimizes involvement of guardianship court over you

v. Can take into account your religious / moral beliefs

vi. Fully revocable

To learn more about living wills, click here.

f. HIPAA Release/Authorization Documents:

i. Allows someone you trust access to medical records that HIPAA would otherwise prohibit them from accessing

ii. Without access to medical records, the person may not have the necessary information to make health care decisions for you, pay your bills, or otherwise handle your affairs

iii. Fully Revocable

2) Guardianship Planning: In an ideal situation, you will not need the guardianship court to oversee you and your property. A guardianship court can be costly, evasive, and time consuming. Nevertheless, circumstances may require involvement of the guardianship court. If so, the following should be considered:

a. Declaration Naming Preneed Guardian:

i. While you have capacity, you may want to appoint a preneed guardian (for example, a family member or friend), whom the court will presume that theperson is entitled to be your guardian if and when it determines that you are incapacitated.

ii. Appoint a preneed guardian by executed a Declaration Naming Preneed Guardian, which should be filed with the court

iii. May be able to appoint a preneed guardian for a minor by executed a Declaration Naming Preneed Guardian for a minor

b. Voluntary Guardianship:

i. A person may be competent but, because of age or bad health, he may not be able to care for and manage himself and/or his property. In that case he maywant to petition the court to appoint a voluntary guardian over the person

ii. Once appointed, a guardianship will exist even though the person may still be competent

iii. Will continue when the person becomes incapacitated

iv. Works well when you do not have a close family member or friend whom you trust to manage your affairs. You can select a professional guardian whom you trust.

3) Life Insurance:

a. Can provide financial resources to those you leave behind so that they can handle:

i. Expenses relating to disposition of your property; and

ii. Their living expenses.

b. What if your caretaker dies before you do? Why not consider a policy on the caretaker’s life to help you financially after the death of the caretaker?

4) Special Needs/Public Benefit Planning: Outside of my practice area, but worth mentioning

a. Methods may exist to structure the ownership of your assets in a way that allows you to access public benefits to which you otherwise would not be entitled

*This document contains legal information, but does not contain legal advice.

*This document has examined laws in effect in August 2012 and May 2013.