It is my pleasure to announce that starting this January 2010 I will be joining the law firm of Needham Mitnick & Pollack, as “Of Counsel.”

After being a solo practitioner for the last 15 years I did not enter into this position lightly. However, I feel that this relationship with the wonderful people of this firm will be a benefit to both myself and my clients.

At Needham Mitnick & Pollack I will continue practicing Social Security Disability Law and Special Needs Planning as well as some additional areas in the future.

I will be available to see clients at Needham Mitnick & Pollack’s offices in Falls Church as well as my present office in Fairfax.

Needham Mitnick & Pollack is a well established Elder Law, Estate, Disability & Special Needs Planning law firm that can assist clients with Wills, Trusts, Probate, Trust Administration, Powers of Attorney, Advance Medical Directives, Guardianships, Long Term Care Planning, Disability Planning, Medicaid Eligibility, Veterans Benefits and Special Needs Trusts.

For more information on the law firm of Needham Mitnick & Pollack, please click here.

Hospitals often give patients a health care power of attorney (health care proxy) form to sign on being admitted.   While signing a generic health care power of attorney form is better than not signing one at all, these documents vary in the amount of care that has gone into their drafting, and having one that is specifically tailored to your needs can be important. 

A health care power of attorney allows you to appoint someone else to act as your agent for medical decisions. In general, a health care power of attorney takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning what that treatment should be.   Appointing someone to serve as your agent helps ensure that your medical treatment instructions will be carried out.

While a health care power of attorney serves to appoint an agent to speak for you, you can also use it to give the agent guidance about your medical wishes.  Following are some issues that can be addressed in a health care proxy:

•The name of the person authorized to act for you. It is good to appoint an alternate as well.
•Whether or not you want to be kept alive by machines if you are in a persistent vegetative state.
•Under what circumstances you want pain medication to be administered.

Whatever choices you make, you should take time to consider your health care wishes before signing a health care power of attorney.  For this reason, signing a generic hospital form may not a good idea, as many of these forms will not take your individual wishes into account.

Also bear in mind that if you already have a health care power of attorney as a part of your estate plan, the generic form will revoke your more personal health care power of attorney.

A qualified attorney, such as Sheri Abrams, can help you create a health care power of attorney that addresses your particular situation. You can then take this document with you to the hospital and have it made part of your medical records.

Disabilities take many forms, and not all of them affect a person with special needs’ ability to make decisions. In fact, although many, if not most, people with either mental illness or some form of cognitive disability may require significant care, they can still carry out most day-to-day activities. In most cases, people with disabilities have the capacity to create their own estate planning documents, and in some cases it is crucial that they do so.

One scenario that often arises has to do with “HIPAA” regulations. HIPAA, which stands for Health Insurance Portability and Accountability Act of 1996, is the primary federal regulation governing a patient’s private medical information. HIPAA gives a patient the right to manage his/her medical information and regulates who can access that information. Because medical providers must follow HIPAA regulations, it is difficult for caregivers who legitimately need to access another person’s medical records, often in an emergency, to do so without a health care power of attorney that authorizes the information’s release. Under HIPAA, doctors in these situations can disclose medical information to patients’ families, but they are not required to do so without a release from the patient.

Parents of children with special needs often bump into these restrictions for the first time when their child reaches 18 and obtains his/her own right to privacy under HIPAA. If the child is not under guardianship, either because he/she does not require it or because no one has obtained it, it may be hard for a parent to obtain information from a doctor or hospital without some form of HIPAA release from their child. In these cases, it is important for the child to execute a valid health care power of attorney and living will, if they are able to do so. The health care power of attorney and living will not only allows access to medical records, but will also provide that the child’s wishes are carried out if he/she ever requires serious medical care.

Another case for estate planning involves adults with an episodic illness. These adults may be perfectly functional and rational 99 percent of the time, yet they are completely disabled when their illness does strike. Having a functional health care power of attorney and Financial Power of Attorney allows an agent to help a person with an illness manage his/her affairs when necessary, without having to obtain an emergency guardianship when that person falls ill.

Finally, there are people with cognitive disabilities who require assistance only with certain tasks but who are perfectly capable of making estate planning decisions, including the choice of who receives their property.

Attorney Sheri Abrams can help you or your family member create these important documents, and can also recommend additional ways to carry out other important estate planning goals.

We all know we are supposed to do estate planning, but not all of us get around to it.   So what happens if you don’t have a will when you die.  Your estate will be distributed according to state laws, which may or may not be the way you want it to be distributed.

Dying without a will is called dying “intestate.” Each state has laws that determine what will happen to your estate if you don’t have a will.  If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don’t have children, to other living relatives such as your parents or siblings.  If you are single, most states provide that your estate will go to your children or to other living relatives if you don’t have children. If you have absolutely no living relatives, then your estate will go to the state.

Note that any jointly held assets, such as bank accounts or houses, will go directly to the co-owner. In addition any life insurance policies or retirement accounts will go directly to the beneficiary designated on the account. And if you have a trust, any assets in the trust will go to the beneficiary designated in the trust.

One purpose of a will is to name a guardian for your young children; if you do not have a will, the court will determine who will act as guardian. The court will also appoint the person who will administer your estate. In addition, if you are unmarried, but have a partner, your partner will not inherit anything from your estate without a will naming him or her as a beneficiary.

The best way to ensure your estate is distributed the way you want it, is to plan your estate with an experienced Attorney such as Sheri Abrams.

Among all the changes you must make when you move to a new state — driver’s license, voter registration — don’t forget your will. While your will should still be valid in the new state, there may be differences in the new state’s laws that may make certain provisions of your will invalid. In addition, moving is a good excuse to consult an attorney to make sure your estate plan in general is up to date. Property laws can vary from state to state. It is especially important to have your estate plan reviewed if you move from a common law state to a community property state (Arizona, California, Idaho, New Mexico, Louisiana, Washington, Nevada, Texas, Wisconsin, and Alaska) or vice versa. In a common law state each spouse’s property is owned individually, while in a community property state, property acquired during the marriage is considered community property. In addition, states may have different rules about when co-owned property may pass to the surviving owner and when it may pass under the will.Other things to consider are whether there is any language you can add to the will to make it easier to probate in the new state and whether your executor still makes sense based on your new location. Other pieces of your estate plan may need updating as well. For example, the state may have different rules for powers of attorney or health care directives.