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Complicated New Advance Directive Law
Requires Study by Health Care Professionals and Lawyers
Written
By: Attorney Jeffrey A. Marshall, CELA*
Who
will make life and death decisions for you?
Advance health care directives, such as living
wills and health care powers of attorney, allow us to maintain some
control over who will someday make health treatment decisions for us.
They can provide a voice for us when we cannot speak for
ourselves.
For many years,
Pennsylvania
was criticized for having out-of-date laws regarding advance directives,
a deficiency that contributes to poor end-of life care.
Finally, the problem has been addressed.
Pennsylvania
's long-awaited new law governing the use of advance health care
directives becomes effective on
January 29, 2007
.
The new law, Act 169, is lengthy and complex.
It creates opportunities for effective advance health care
planning but creates traps as well.
It is particularly important that health care providers and
lawyers study the new law. To
assist these professionals, Marshall, Parker & Associates has put
together a comprehensive guide to the new law.
The Guide is available on the
Marshall
, Parker & Associates' website at http://www.paelderlaw.com/PA_Attorneys_Guide_to_AD.html.
Act 169 should make an authorized medical proxy
decision maker available for most adults.
The Act authorizes a qualified individual, referred
to as the "principal," to appoint a surrogate decision maker
("agent"). The agent can be authorized to make any health-care
decision, including those concerning end-of-life treatment.
The law provides a list of default decision makers for persons
who lack an available agent.
Act 169 is
sweeping in its scope. Some key aspects of the new law include:
(1) Medical
decision making by family members and close friends (representatives) is
authorized for incompetent adults who have no appointed agent;
(2) Agents
and representatives are given the authority to make almost any decision
a competent patient could make;
(3) The
decision making process to be followed by agents and representatives is
set out in detail;
(4) An
example advance directive is included.
This optional form emphasizes the document as only one step in a
planning process that should include frank discussions with family
members and health care providers;
(5) Prior
living wills and health care powers of attorney remain valid;
(6)
Responsibilities are placed on physicians and other health care
providers;
(7) The
Department of Health is directed to provide oversight to ensure the
law's surrogate decision making process is followed.
Act 169 was the result of years of discussion,
lobbying, and negotiation by many interest groups. The Act shows the
effects of its collective parentage - it is lengthy and intricate and
occasionally inconsistent. Unfortunately, its complexity increases the
potential that its provisions will be either misunderstood or
disregarded by lawyers and health care providers.
What You
Should Do Now
Consumers
should understand that their prior living wills and powers of attorney
remain valid. Nevertheless, this may be a good time to re-evaluate your
planning documents, especially if you have only a living will.
(See the discussion of the inadequacy of living wills in the Guide).
Most people should have a comprehensive advance directive that
combines end-of-life instructions with a health care power of attorney. (Note to Marshall, Parker & Associates clients: Virtually all
clients who have had their advance directives prepared by Marshall,
Parker & Associates over the last 15 years already have the kind of
comprehensive advance directive which is encouraged by the new law.)
Advance directives should be reviewed and updated
as your circumstances and preferences change. Your choice of the person
to serve as your agent is of particular importance. Consumers may want
to review Section
3-1.2.1 of the Guide for some tips on choosing the right agent.
Lawyers
should study the provisions of the new law to make certain that the
Advance Directives they prepare meet its requirements.
They should also counsel their clients as to the importance of
engaging in an ongoing advance planning process.
The preparation of the document is just one step in the process.
Health
Care Providers should study the new law and be cognizant of the
requirements it places on them. These
requirements are outlined in Section
1.5 of the Guide (1-5 Duties and Protection of Health Care
Providers).
Professional
Resources on
Marshall
, Parker & Associates'
Website:
-Understanding
Act 169: A Professional's Guide to Living Wills and Health Care Powers
of Attorney in Pennsylvania
-Act
169: Updated Advance Health Care Directive Law
Attorney
Marshall can be contacted at webmail@paelderlaw.com
or at 1-800-401-4552
Spousal
Income Allowance to Increase to $1,711.25 on
July
1, 2007
If
a married nursing home resident receives Medicaid long-term care
benefits, his or her community spouse is entitled to retain a certain
minimum level of income called the Minimum Monthly Maintenance Needs
Allowance (MMMNA). If the community spouse's own income is
insufficient to provide this income allowance, income can be diverted
from the institutionalized spouse.
The
MMMNA must be at least 150% of the federal poverty level for a family of
two plus an excess shelter allowance. The minimum MMMNA is set by
federal law and is adjusted no later than July 1st of each
year to keep up with inflation.
Pennsylvania
adjusts its MMMNA on each July 1st.
As
of
July 1, 2007
, the minimum MMMNA will be increased from $1,650 to $1,711.25 per
month. The actual MMMNA can be higher depending upon the monthly
shelter related expenses incurred by the community spouse.
Federal Estate Tax
Exemption for 2007
Written
By: Attorney Jeffrey A. Marshall, CELA*
The federal estate tax exemption amount for
individuals is currently $2 million.
With expert planning, married couples can now protect up to $4
million from the federal death tax.
Mistakes can be costly. The
tax rate for estates with assets worth more than the exemption is 45%.
The
federal estate tax rates and exemption amounts are the result of the Tax
Act that was enacted back in 2001. Under
that law, reductions in federal estate tax rates and increases in the
exemption amounts are being phased in through 2009.
Then, in 2010, the federal estate tax will be repealed entirely,
but only for one year. In
2011, if lawmakers do nothing, the federal death tax will return and
apply to estates as small as $1 million with tax rates of up to 55%.
It
seems likely that Congress will modify the federal death tax law again
before 2010. In light of the
budget deficits that are currently being projected, it seems unlikely
that the repeal of the estate tax will be made permanent.
More likely is a permanent but limited increase in the exemption
amount.
Given
the confusing "phase out" followed by the return of the estate tax,
consumers with potential estates of $1 million or more need to create
plans that are flexible enough to change along with the tax laws.
Married couples may want to include the use of planned
disclaimers which can allow the surviving spouse to create a tax saving
trust as needed.
No
matter the size of your estate, remember that the primary goal of estate
planning is to provide in the best manner for your heirs, and ensure
that your assets are distributed to the right people, in the right
amounts, at the right times.
Attorney Marshall can be contacted
at webmail@paelderlaw.com or
at 1-800-401-4552
Save the Date:
Marshall
,
Parker & Associates' 11th Annual Professional Update is
Scheduled for May
Written
By: Melissa Bottorf, Director of Marketing & Public Education
This
is another tumultuous year for professionals who work with seniors. A
number of new Federal and State laws have changed the face of financial
and health care planning for seniors.
As always,
Marshall
, Parker & Associates is here to bring you up to date on the most
important changes.
The
Update is presented free of charge and Continuing Education Credits for
some professionals will be available.
Last year, over 400 professionals attended our sessions in
Williamsport
and
Wilkes-Barre
. Mark your calendars now
for this year's events. Spend a morning with us to get up to date on
the new laws and network with your colleagues.
Williamsport
Update
Thursday, May 10 at the
Williamsport
Country Club
Breakfast and Registration at
7:30 AM
Wilkes-Barre
Update
Friday, May 11 at the Woodlands Inn and Resort
Breakfast and Registration at
7:30 AM
If
you have questions, or if your business or organization would like to be
one of this year's sponsors with an exhibit table at the update,
please contact Melissa Bottorf at mbottorf@paelderlaw.com
or at 1-800-401-4552.
Back issues of The
Elder Care Law Alert are available on our website.
You
can even search our site by a keyword
or phrase!
Do you have a friend or
colleague who would enjoy reading the
Elder Care Law Alert? If
so, please feel free to forward it to them. Simply use the "Forward" button on
your e-mail program.
To subscribe or unsubscribe to the Elder Care
Law Alert,
simply send your request to:
webmail@paelderlaw.com
*Attorneys
Marshall and Parker are certified
as Elder Law Attorneys by the National Elder Law Foundation under
authorization from the Pennsylvania Supreme Court
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