Facebook and other social networking sites are becoming an indispensible part of modern life. As the world shrinks and family members, friends, and business associates find themselves scattered around the country – or the globe – sites like Facebook, LinkedIn, and Twitter are quickly becoming a communication method of choice.

Even attorneys who have yet to jump on the social media bandwagon have growing numbers of clients who are already on board, and it’s no surprise. These social networks allow users to find and communicate quickly with a massive network of friends and associates. They let people build business networks without leaving the office, and share photos, video, and personal updates with family and friends.

But what happens to a client’s Facebook or Twitter account – or their email account, for that matter – when they die? These accounts fall into the category of digital assets, and unless a client has made express plans for these accounts, they can be left in limbo.

Access to a client’s social media accounts is subject to the Terms of Service (TOS) agreement of the sites in question, and many TOS agreements do not allow a decedent’s personal representative to gain access to an account automatically. So if no one but your client knows the relevant usernames and passwords, there’s no way for their survivors to access these accounts for purposes of terminating them – or carrying out whatever wishes the client may have for them.

• Facebook and other social networking accounts
• Blogging accounts
• Messaging (SMS) accounts
• Email accounts

Under the Nebraska bill, the personal representative would have the authority to take control of the decedent’s accounts and either continue or terminate them, unless the decedent’s estate plan provided otherwise.

As things stand now, Facebook has created “memorialized” profiles for its deceased members, changing the privacy settings of accounts when it receives notification that a member has died. Once an account has been memorialized, family members and friends can continue to leave posts, but the member’s contact information is removed and only confirmed friends can see the profile.

That’s not the same thing as removing an account, and not much comfort for those who are left without access to their loved ones’ e-mail accounts, blogs, and other important digital assets.

So, what should you be doing for your clients now, as we wait for the law to catch up with technology? You can help them understand how important their digital assets are, and help them incorporate those assets into their estate plans. In my next blog, I’ll give you some simple tips for how to help your clients start thinking about estate planning for digital assets.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Making decisions about medical care can be a daunting proposition – we know this from our own experiences. Start with the sophistication of diagnoses, add the complexity of medical procedures, and top it off with a menu of treatment options. Deciding what to do can be a recipe for anxiety, paralysis and/or self-doubt – even among those who are highly informed.

A new book takes on the task of helping people make the medical choices that are right for them. Your Medical Mind, by Drs. Jerome Groopman and Pamela Hartzband, begins with a fundamental assumption: there is often more than one correct decision for patients. It then tackles how patients can go about determining what care they want. In addition to coaching readers to gather the factual information about their options, the authors help people understand how their personal values – their goals, dislikes, and fears – can inform what medical decision is best for them.

Your Medical Mind helps people understand how they view medicine and medical treatment, whether  as doubters (who tend to worry about the side effects or risks of treatment) or believers (who are convinced that the treatments or approaches will work and prefer to “do something”) or as a blend  between these two extremes. They also suggest that patients look at the effect that the options will have on their lives and why these either matter or don’t matter to them.

Understanding and recognizing this can help patients make choices they are more comfortable with, and it can help doctors guide these patients to choices that are better suited for their beliefs and values. For instance, one patient didn’t want surgical thyroid removal for Grave’s disease because he didn’t want to be forced to take a pill every day. Another preferred the surgery because he wanted to “just get it over with” and move on with his life.

The significance of this book’s approach to decision-making is amplified when clients are faced with serious or end-of-life decisions about care. This is exactly the role that advance directives try to play. And it is also, I would argue, exactly the kind of conversation that’s particularly important for patients and health care surrogates to have. It is important for clients’ health care agent(s) to know, fundamentally, what the clients’ goals are when facing an end-of-life or other serious condition. And this includes even going that next step further – WHY is that the goal? Or WHAT does the person like or not like about that option? This will help clients communicate to their agent what’s really important to them. Is the goal to live without pain? To be able to tell jokes and watch Sunday afternoon football regardless of one’s physical abilities or limitations? To be able to take a Sunday afternoon stroll, even if one’s memory is lacking?

This book, and others like it that attempt to help clients dig below the surface level of their decision-making, may be useful tools for clients and their loved ones. It may be especially helpful to clients and their agents in talking about some of the big end-of-life treatment questions. Having additional language and another way to frame the conversation can only help.

Please let me know if you recommend any tools or resources that help clients and their surrogates improve their communication, complete more informed advance directives, or make better medical decisions. I am interested in learning from your experiences.

Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), the largest advance directive registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Last month, I wrote about how the U.S. Department of Health and Human Services has begun enforcing HIPAA by imposing large financial penalties against healthcare providers for HIPAA violations. (In the first case, a healthcare provider received a $4.3 million civil penalty for failing to provide timely personal health information to patients upon their request; in the other, a different provider agreed to a $1 million settlement for disclosing patients’ personal health information without their approval.)

What will be the fall-out for you and your clients from this new enforcement? If healthcare entities intensify their efforts to avoid HIPAA financial penalties, we may see a few things happen:

• Patients themselves may have an easier time gaining access to their own medical information. And some may even get it more quickly. At the same time;

• Patients’ family members — and others whom the patient wants to have access — may have a harder time getting the patients’ information.

What does this mean for your clients’ legal needs?

1. Clients need a Health Care Power of Attorney (HCPOA) more than ever. This document may increasingly do double-duty. In addition to its primary function, the HCPOA also serves as a de facto HIPAA Release, even if you haven’t specified this in the document. The HIPAA law expressly authorizes the health care agent to receive the patient’s personal health information (called “PHI” under HIPAA).
2. Clients may increasingly need a separate HIPAA Release designating individual(s) — in addition to the health care agent — who can receive their medical information. Why? Clients often rely on someone other than their health care agent to help them navigate the healthcare system. This might be another family member, a friend, or a neighbor. Healthcare providers may be increasingly apt to request written authorization from the patient to deal with any of these folks on your client’s behalf. (If you are getting feedback to this effect from your clients, please let me know.)
   
   Alternatively, some firms are addressing this need within their HCPOA document itself, rather than drafting a separate HIPAA Release. They are creating a section in the HCPOA naming additional individuals to receive PHI under HIPAA, but who are not authorized as health care agents. (I’d like to report back on the trend in how attorneys are handling this. Please share your approach with me at rsiegel@docubank.com.)

The stricter HIPAA enforcement may also create heightened challenges particular to college students and other young adults. More on this in another post.

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directives registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd Ste 240
San Diego, CA 92124
858-453-2128
www.aaepa.com

I shared in my last post that clients’ healthcare directives are useless if they cannot be produced at the hospital when they are needed. To close this gap between the legal and the medical worlds, registries for advance directives have been created that provide rapid access to these important documents by storing them electronically.

How do such registries work? Typically, the registry scans and stores a copy of the individual’s advance directives electronically, and the individual registrant receives a wallet card with a unique identification number. Hospitals use this card to obtain the person’s directives, usually by calling a toll-free number and receiving the documents via fax, or by going to the registry’s website and printing the documents.

So, all well and good: The question is, how do you go about choosing the right registry for your clients? Your options include a variety of private registries, as well as a state-operated public registry in some states. Here are a few of the factors you might consider in selecting a registry for your clients:

• Does the registry provide live support 24/7/365, so hospital staff can talk to a human being at any time, if necessary?

• Can the hospital receive directives both via web and via fax? Internet-only services pose access problems at some hospitals, where some staff are not granted web access.

• If the client is traveling out-of-state or internationally, will the service work immediately in all cases?

• How do hospital emergency personnel know that a client is registered? Does the registry provide a wallet card, wallet stickers, or any other means of alerting hospital staff to the patient’s registration?

• How easy is it for your firm to register your clients? Is the client registration form integrated into your firm’s document creation software to avoid duplicate data entry?

• Does the registry review the directives for common clerical errors:  missing pages, documents assigned to the incorrect client, etc?

• What firm branding opportunities and other marketing support does the registry offer?

• Does the registry have a proven record of reliability and stability? How long has it been operating? How many individuals has it registered? Many registries have come and gone in the last 15 years.

By registering your clients in a proven, effective emergency access service, you can show your clients that you are committed to making each document you draft work for them when it is needed. Clients, in turn, will be grateful to you for the peace of mind and protection that registration ensures, whether or not they ever use it at the hospital.

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directive registry in the U.S., which ensures that the healthcare directives of its 175,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd Ste 240
San Diego, CA 92124
858-453-2128
www.aaepa.com

We all know the importance of advance directives in making clients’ healthcare wishes known.  Unfortunately, research tells us that creating such documents does not necessarily ensure that their wishes will be known when it counts.

Consider this: According to a study in the Journal of the American Medical Association, advance directives were not available in three out of four cases when a patient was admitted to the hospital.

Or this: In 67 to 74 percent of cases, physicians were not aware that their patients even had advance directives.

What explains the unavailability of these documents and the lack of knowledge about their existence by the medical professionals who need them?  For one thing, people tend to file away their directives, store them in a safe deposit box, give them to family members, or even leave them in the estate plan binder you gave them. And why wouldn’t they? Who goes out in the morning thinking “What if I get into an accident or suffer a stroke today… better bring my advance directives with me just in case.” Thus, the documents are not readily available in emergencies, the very situations in which they may be most needed.

To address this problem, a number of electronic registries now provide instant access to advance directives. Utilizing the vast capacity offered by electronic storage and high-speed data transmission, these services permit advance directives to be obtained from just about anywhere, so that these documents can do their intended job at a moment’s notice.

Registries can also help protect clients’ advance directives from being unwittingly superseded — another benefit not widely recognized.  Here’s how: if a patient does not have his or her advance directive in hand when hospitalized, the hospital typically offers the patient the opportunity to complete a new directive, right there on the spot during the admissions process.  This directive is typically the state’s statutory form.  Patients often comply with the hospital’s offer (which is sometimes heard as a request) to complete a new directive –because they want to be cooperative.  But (as you well know), any new directive the client executes will negate the previous directive that you created.  Any non-statutory language that you may have carefully drafted to further clarify and protect the client’s wishes will be undone.

So how do registries work, and what should you look for in recommending one to your clients?  More on this in an upcoming post.

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directive registry in the U.S., which ensures that the healthcare directives of its 175,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com

Death is a very real part of life, along with taxes. Yet, funerals are the only life cycle event most folks don’t want to plan in advance.

Despite the fact that humans have a 100 percent mortality rate, we don’t expect to die. If you don’t expect to die, you’re unlikely to preplan a funeral. And that leads to problems like family discord, higher costs, rote rituals devoid of meaning, and unnecessary stress added to grief.

Wedding planning gets way more attention than funeral planning, even though both events can conceivably cost the same, given a modest wedding and a traditional funeral. Yet, if the bride and groom planned their wedding the way most folks plan a funeral, they’d be scrambling to pull everything together in three days—talk about stress!

We are mortal. Our bodies eventually stop working. Many religions teach that the soul, the spirit that resides within our bodies as long as we breathe, lives forever. So, why fear death, and by extension, why fear funeral planning?

To talk about funeral planning, we would have to admit that this joy ride called life has an end. We’d have to look at how we’ve lived our lives, examine how we’ve acted and review what we’ve done with our time on Earth. We’d be forced to look at how we’ve treated others, and think about what others would say about us at our funerals. We’d need to take stock of our achievements and contributions to humanity. Perhaps we are afraid we’ll find ourselves lacking.

There are other reasons. Medical advances have saved so many lives so many times, it seems like death is optional. We don’t like the thought of losing the company of those we love. We avoid thinking or talking about death, perhaps for fear that its contemplation will precipitate the event. And many folks just don’t know what to do anymore when it comes to death.

Robert Fulghum, who wrote All I Really Need to Know I Learned in Kindergarten, also wrote a lovely book called From Beginning to End: The Rituals of Our Lives. Fulghum wrote, “For most of us, once we die, we are no longer in the care of our families and friends — strangers and institutions take over… Death is not in our school curriculum.”

He added, “Instead of a normal part of life, death is treated as an unexpected emergency, something that happens when the medical community fails. We always die ‘of something’ — as though if it weren’t for that disease or accident, we could have lived on. ‘Old age’ or ‘worn out’ or ‘life completed’ are concepts not found on death certificates or in obituaries. Death in our time means crisis.”

In fact, according to one hospice nurse I know, no one has died of old age since the 1950s. That’s when death certificates were changed to require listing a specific medical cause of death, such as a heart attack, dementia, or pneumonia.

We use euphemisms for death: passed on; kicked the bucket; gave up the ghost; checked out; left the building; keeled over; took the Big Bus; caught the last train; bought the farm; paid the ultimate price; pushing up daisies; knocking on the Pearly Gates; taking a dirt nap; and gone to the Great (whatever) in the Sky.

You, me, all humanity, we will all need to be disposed of when we die. If you don’t talk about what you want done with your lifeless body, you will leave your family and friends in a world of hurt if the Big Bus unexpectedly runs you over tomorrow and transports you to the Pearly Gates. Do everybody a favor and make some plans. It’s best to put your two cents in now, while you still can.

Just as talking about sex won’t make you pregnant, talking about funerals won’t make you dead–and your family will benefit from the conversation. Start a conversation today.

Gail Rubin is an event planner who speaks about funerals and memorial services. She gets the conversation going. She’s also the author of The Family Plot Blog (TheFamilyPlot.wordpress.com) and the forthcoming book, A Good Goodbye: Funeral Planning for Those Who Don’t Plan to Die (www.AGoodGoodbye.com). Starting on October 30, the 11^th annual Create a Great Funeral Day, Rubin will launch the “30 Funerals in 30 Days Challenge,” designed to bring light to a dark subject and help families get end-of-life conversations started.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com

This week my wife’s grandmother passed away and I was reminded how similar weddings and funerals really are. I know this sounds crazy, but these two events have all of the same basic elements.

Weddings and funeral ceremonies are both held in a church, synagogue, or some other type of facility. They both have flowers and decorations, they both typically have music, both have a minister or someone who officiates the service, there’s usually a lot of food at both occasions, and they both have a lot of family travel. In our case, we saw people this week at the funeral that we hadn’t seen since our wedding and we probably won’t see again until another wedding or funeral takes place in our family!

Typically with a wedding you have 6-12 months to prepare. Even though this is a very joyous occasion it can still be very stressful… I know it was for my wife and I! However, with a funeral you usually only have about 6-12 hours to plan. Without proper planning and guidance this can be very difficult on the surviving family when you compound all of the planning that goes into this event especially with the confusion, stress and grief that accompanies the loss of a loved one.

Helping my wife’s family plan this funeral reminded me of all the details that go into planning a funeral. It also reminded me how a well planned funeral ceremony can truly celebrate a life and help them leave a lasting legacy!

I know this is something that none of us want to think about, but it’s going to happen to all of us. With this in mind, we need to be prepared to make it a little easier on our families, and in the case of estate planning attorneys, our clients as well. As I learned this week, this can truly be one of the greatest gifts you can leave your family!

Bryan W. Adams is President & CEO of Premier Planning, LLC and Founder of Legacy Safeguard. Bryan is considered one of the nations’ leading experts on final expense planning, and he frequently speaks throughout the country about the importance of assisting clients to gain peace of mind through advanced funeral funding.

Bryan’s passion for helping families prepare for their final expenses came from being raised in the funeral business. His family still owns and operates several funeral homes, and he is constantly amazed at how unprepared families are when a death occurs. Bryan has worked tirelessly to help Americans plan for the inevitable and lessen the burden on their loved ones.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Road, Suite 240
San Diego, CA 92124
www.aaepa.com