Health Information Privacy After Death

If you've ever visited a physician's office, you are aware of the federal HIPPA (Health Insurance Portability and Accountability Act) regulations, which protect the privacy of personally identifiable health information.

The HIPPA Privacy Rule extends to protect a deceased individual's information for 50 years after death. But how can a family member can obtain the private information of a deceased individual?

First, a health care provider may - but is not required to - disclose the information to an individual (such as a surviving spouse) if 1) the individual was involved in the deceased's health care or payment for the health care and 2) the deceased did not express a preference to keep the information from the individual.  Information shared must be related to the individual's involvement in care or payment.  If the entity knows that the deceased did not want information shared with the requester, it should not do so.

Second, the provider is required to release personal health information if requested by the decedent's personal representative (such as an executor named in a will or an adminstrator appointed by a probate court).    In this case, the legal representative steps into the shoes of the decedent.  Even if the decedent expressed a preference to keep that information from the representative, the entity must release the information.

More background information on the Privacy Rule's application to the health information of decedents is available from the U.S. Department of Health and Human Services.

Protecting Yourself from Online Fraud

Over the last several weeks, our office has received numerous calls from victims of a fraudulent email scam.  The email purports to originate from an attorney at our address and falsely promises to provide the recipient millions of dollars from a long-lost relative who shares the same last name:

Good Day,

This is a personal email directed to you and I implore that it be treated as such. I must solicit your Consent and assure you that I am contacting you in good faith and this proposal will be of mutual benefit. I Conall Malory, Counselor. I represented the late __________  until death, hereinafter referred to as my client who worked as an oil explorer in East London, He died in a car crash with his immediate family in London United Kingdom on the 15th of March 2013.    

. . . 
    

I seek your consent to present you as the next of kin of the deceased since you have the same last name giving you the advantage so that the proceeds of his account can be transfered to you and then both of us can come to an agreement on how we can share the money when the tranfer of the fund to you is completed. I know there might be other persons out there with the same last name as my late client but my instinct tells me that I can trust you. Can I trust you for us to do this? I shall assemble all the necessary documents that will be used to back up your claim.

    

----

This "next of kin" email is a fraud, designed to scam recipients into paying the sender an advance fee.  Our office has no connection with or knowledge of the fraud.  Mallory Law Office, LLC has no attorney with the first name Conall; Conall Mallory is in fact a Lecturer at a British law school; and the fictitious last name "Malory" is spelled differently than "Mallory".

If you have received a similar email, you should not respond.  Before deleting the message, you may wish to open to the email, click the arrow near the reply icon, and click "report phishing" to notify GMail.

The false email above is a type of scam known as "phishing" - when criminals impersonate a legitimate business in order to trick you into providing money or personal or financial information. The Federal Trade Commission has some helpful tips on responding to phishing scams - most importantly, delete messages that ask you for personal information (such as bank account numbers or Social Security numbers.)  You can also forward phishing emails to the Federal Trade Commission at spam@uce.gov.

Most importantly, remember the old truism: If it sounds too good to be true, it probably is.

Money Don't Matter 2 Night?: Prince Estate Complicated by Lack of Will

In 1991, recording artist Prince released a song entitled "Money Don't Matter 2 Night" with these lyrics:

Money don't matter tonight 
It sure didn't matter yesterday 
Just when you think you've got more than enough 
That's when it all up and flies away 

These lyrics may now have a new meaning for Prince's relatives. Despite hundreds of millions of dollars in assets, the music star apparently never took the time to make a will before he died last month at age 57.

From the New York Times:

Prince died without a will, according to court documents filed by his sister on Tuesday, potentially causing big complications for that star’s sprawling financial estate and musical legacy. 

In probate documents filed with the Carver County District Court in Minnesota, Tyka Nelson, 55, Prince’s sister, said that her brother died without a spouse, children or surviving parents, and that “I do not know of the existence of a will.” 

From the Minneapolis Star-Tribune:

If Prince left no trust or will, state law determines how the assets will be distributed. Attorneys say the more money there is at stake, the more likely there will be a dispute that could take years to sort out. 

For federal tax purposes, the only thing that matters is the value of the estate the day Prince died. By any measure, that’s a bundle. 

In addition to Prince's physical assets - such as homes or recording equipment - the star owned intellectual property rights such as song copyrights or the trademark to his "Love Symbol", as well as many unreleased songs. Each of those assets must be valued and then distributed as provided by the laws of Minnesota.

While most of us have assets far less than those of Prince, this is yet another reminder of the importance of considering your end of life wishes and consulting an estate planning attorney to ensure that those wishes are carried out.

Estate Planning Post-Divorce

One of the most important reasons young parents create an estate plan is to name a guardian for their minor children in the event that both parents die before the children reach the age of majority. If the parents are divorced, their individual wills may name a guardian who is not the ex-spouse. Who would become the guardian of the children?

Throughout Ohio’s juvenile code, a court is required to make custody decisions based on “the best interest of the child.” In custody hearings between parents and non-parents, Ohio courts have also established a general rule that the child’s best interest is to be cared for by his or her parent. However, parental custody is not in the child’s best interest if, for example, the parent has abandoned the child, is unable to provide support, or is otherwise unsuitable. (See In re Perales, 52 Ohio St. 2d 89 (Ohio 1977))

To determine the child’s best interest and the parent’s suitability, the court would have a number of factors to consider. For example, the court would take into account a divorced mother’s will which names a grandmother as guardian. However, it would also examine the children’s relationship with their father: Does he live nearby or out of state? Is he involved with parenting? Physically violent? The couple’s divorce or custody orders may also provide important information for the court to review.

Bottom line? If you are divorced, it is essential to consult an attorney when making your estate plans to ensure that your wishes regarding your children are best reflected in your estate documents.

Facebook Users Can Now Designate Someone to Manage Account After Death

In response to growing calls from the public, Facebook has given users more control over their account after death. 

From the Associated Press:

Facebook is making it easier to plan for your online afterlife. 

The world's biggest online social network said Thursday that it will now let users pick someone who can manage their account after they die. Previously, the accounts were "memorialized" after death, or locked so that no one could log in. 

But Facebook says its users wanted more choice. Beginning in the U.S., Facebook users can now pick a "legacy contact" to post on their page after they die, respond to new friend requests and update their profile picture and cover photo. Users can also have their accounts deleted after their death, which was not possible before.

For more, read the Associated Press article, add a legacy contact to your Facebook page, or learn more about managing "digital assets" after death.

"Springing" Powers of Attorney: Three Questions

Sometimes a client may want to grant a power of attorney to allow another person to manage her affairs but delay the effective date of such power to a time in the future. These are often called “springing” power of attorneys, because the power “springs” to life at a later date. Springing powers can be a helpful estate planning tool, particularly when an individual is currently in good health and in full command of his or her faculties.

Any springing power of attorney must answer at least three questions: 1) When does it become effective? 2) How long is it effective? 3) Is it still effective if the grantor regains capacity?

Effective Date: The first consideration is when the power springs to life – or its effective date. In some cases, the power of attorney is immediately effective by default (although as a result, it is not a true springing power):  

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions. 

The simplest springing power has language to specifically list when it becomes effective, such as in this example:

This Springing Power of Attorney shall become effective on January 1, 2025 or on the occurrence of my husband's death or on my disability, incapacity or adjudged incompetency. 

In some cases, individuals may want to require some proof of such disability, such as a physician’s letter, before the power is granted:

This Power of Attorney shall become effective when a letter written by my attending physician is attached to it stating that my attending physician has determined that it is in my best interest to have the assistance of an agent in handling my affairs (either for the foreseeable future or for a specified time period). 

Effective Term: Once the power of attorney becomes effective, the second question is when it expires. In most cases, there are two options. The power could be open-ended, with no expiration date; or it could remain in effect only until the incapacity has been terminated.

Recurring Disability: If the power of attorney has an end date, a final question must be answered. What happens if the disability ends but later reoccurs – such as, for example, a second stroke?

Our office recommends allowing the springing power of attorney to be revived – rather than revoked altogether – if the individual is disabled again at a later time:

Upon my regaining capacity, this Durable General Power of Attorney shall not be revoked but shall become effective again upon my subsequent disability, or incompetency as set forth above.

Wealthy Giving Less to Charity; Poor Giving More

A recent report by the Chronicle of Philantrophy studied charitable giving in America, and the results were perhaps surprising. The study found that, as the country struggled out of a recession, wealthier Americans are giving away a smaller percentage of their income, while poorer Americans are giving more.

According to Forbes, Americans who earned at least $200,000 gave nearly 5% less to charity in 2012 than in 2006. In contrast, Americans who earned less than $25,000 increased their charitable giving by almost 17%.

The trend was similar in Central Ohio. The Columbus Dispatch reported that donors in the Columbus area gave about 2.6 percent of their income to charity in 2012, a 6.5 percent decline since 2006. This places Columbus 39th among America’s 50 largest metropolitan areas in giving, behind both Cleveland and Cincinnati. Area residents making less than $25,000 gave away 7.19% of their income; those making over $200,000 gave away only 2.43%.

Charitable giving should be carefully considered for both short- and long-term tax and estate planning purposes. Contact our attorneys for assistance.

Powers of Attorney: Protecting Yourself from Abuse

As part of the estate planning process, we often ask our clients to consider signing a durable power of attorney. This document gives another person (the “attorney-in-fact”) the power to do a variety of things on your behalf, such as access financial accounts, transfer property, or defend legal actions.

An “attorney-in-fact” acting under a power of attorney owes fiduciary duties to the individual who executed the power of attorney. This means an attorney-in-fact must act solely in the best interest of the principal and is required to act with good faith, care, and loyalty on behalf on the principal. Acts of self-dealing which benefit the attorney-in-fact are prohibited.

Although most attorneys-in-fact act in the interest of the grantor, these powers are sometimes abused, even by family members. Often, this abuse targets the elderly or others who are unable to care for themselves. For example, instead of using the principal’s funds to pay for long-term care expenses, the wrongdoer may instead withdraw money for a personal vacation trip.

Improper use of powers of attorney is a serious violation of law. An individual who abuses a power of attorney can be subject to a variety of legal claims including fraud, misrepresentation, conversion, breach of contract, and breach of fiduciary duty.

What can you do to protect yourself? First, if you are granting a power of attorney, you must be absolutely sure that you select a trusted attorney-in-fact who will act in your interest and carry out your wishes. Second, if needed, the document granting a power of attorney should specifically outline those wishes – and any limitations. It is also advisable to revisit the power every few years, particularly if the relationship situation or dynamics have changed. Conversely, if you have been granted a power of attorney, use your power with good faith in the principal’s interest, and watch for signs of abuse by others.

Uniform Fiduciary Access to Digital Assets Act Approved

Several months ago, a previous post discussed the important issue of what happens to someone's online accounts after their death.  Last week, the Uniform Law Commission approved model legislation to address this growing problem.

From the Uniform Law Commission's news release:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.”  If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.  UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees. 

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement.  Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

The draft legislation -- which gives the deceased's representative access to the accounts unless a will, court order, or law provides otherwise -- would only become effective if adopted by a state's legislature.

Facebook After Death: What Happens to Your Digital Assets?

From bank accounts to social media, more and more of our personal information is stored and accessed online. But after someone dies, both these digital accounts and the “digital assets” (from e-mails to stored files) contained in the accounts can become difficult for the deceased’s representative to access.

Typically, access to a deceased’s online accounts or assets is governed by each site’s policies. For example, Twitter requires a death certificate and a signed statement from the deceased’s representative before closing an account. Shutterfly will provide access to an account with proof of a death certificate and power of attorney document. Yahoo allows a deceased’s account to be closed by the personal representative but not accessed. Requests to close Instagram accounts can be made entirely online by someone other than the representative. Gmail warns that its 2-step process may take several months and require, among other things, an e-mail from the deceased and a court order.

In an effort to streamline family member’s access to online information, some states have proposed or enacted legislation to allow family members or representatives to access digital assets or accounts. For example, Idaho’s law specifically gives the power to an estate’s personal representative to “take control of, conduct, continue, or terminate any accounts of the decedent” on social networking, microblogging, or e-mail websites. Ohio has not yet enacted such a law.

It is unclear how this patchwork of new law will affect existing probate, criminal, or other statutes. As a result, the Uniform Law Commission is currently drafting model legislation governing Fiduciary Access to Digital Assets to give guidance to the states.

Until this new area of law is settled, both clients and attorneys should include digital asset consideration in the estate planning process. We are now recommending that our clients incorporate language into their estate plans to specifically grant personal representatives the power to access digital assets after death.