Thwarted by HIPPA rules? Persevere.

Protected health information can’t be  disclosed to anyone but the patient or the patient’s authorized recipients.  If you are the court-appointed Guardian of an incapacitated person, or you are a designated Agent under a Health Care Proxy or Health Care Power of Attorney, you may have encountered roadblocks in trying to get access to the records of the person you are acting for.  These protections of confidentiality were always a matter of common law but were explicitly set down in the Health Insurance Protection and Portability Act of 1996, usually called “the HIPPA Law.” The law allows the patient to sign a HIPPA-compliant records release. The law also explicitly states that a Guardian is an authorized recipient, and that the designated Health Care Proxy/ Agent/ Representative is an authorized recipient. Nonetheless, even if you are authorized, you may hit roadblocks getting access to the medical records of the incapacitated person.

I encountered this recently and I have to say it was just maddening. I have been  the Legal Guardian [of Person and Property] for a certain individual for about 15 years. Two months ago he had a serious injury and was admitted to the hospital. The patient has been in that hospital before and I thought that my guardianship record had been placed on the chart. Arriving at the hospital on the weekend without my guardianship certificate, I discovered that they could not check the prior charts, and of course would give me no information. At 7:30 Monday morning, I faxed up the guardianship certificate with a request that the nurse or doctor call me. By mid-day  I had heard nothing and when I called in I was told that those faxes go to a central fax room and don’t get delivered right away [though I had faxed it to the direct line at the nurses’ station]. This whole process had to be repeated and finally a day later I was able to have a telephone meeting with the treatment team. Then he was back in the hospital, and on arrival at the hospital a few mornings later the floor nurse wouldn’t allow me to review the patient’s chart, citing HIPPA, and I had to again provide the certificate because they still hadn’t actually entered this critical information into the patient’s chart.   Even with that it took several conversations until the nurse was persuaded that I had authority to not only see the chart but to make the decisions and sign the Consents to Treatment. When the patient was discharged to an outside  subacute facility, the hospital didn’t provide this guardianship information with the transfer paperwork and I had to start it all over again. When he went back to the hospital, a new chart was being created and again, they found no record of my guardian status. Start again.

The usual Health Care Power of Attorney appoints a decision-maker to make the medical decisions if the doctors determine that the patient is incapable of giving informed consent. A good document will also say that its effectiveness is not diminished by the mere passage of time, and it will also grant HIPPA access to information. However, if the patient isn’t incapacitated, the patient may still have to sign a new HIPPA authorization in order for the treatment team to be willing to share information with you. That wouldn’t install the person as surrogate decision-maker at that point, but it would give them access to necessary information in order to be able to assist the patient to make decisions about treatment. Here is a downloadable PDF of a HIPPA-compliant form which we provide to all of our estate planning clients. HIPAA FORM.

The moral of this story is: (1) always bring the original guardianship certificate or health care power of attorney to the health care facility with you, (2) get an updated guardianship certificate one a year so that it is reasonably current; (3) if you are the health care proxy but your person isn’t mentally incapacitated, ask him or her to sign a medical release authorization and place it in the chart so that you can have access to information.

Call us for legal advice concerning the appointment of health care representatives and functioning as a guardian or power of attorney ….. 732-382-6070

Protective arrangements may be necessary for individuals impaired due to drug addiction

When one thinks about “guardianship,” one usually thinks about cases involving dementia or severe developmental/intellectual disabilities, or perhaps the residuals of traumatic brain injury. The definition of “incapacitated” is broader than that. In the New Jersey probate code, “incapacitated individual” is defined to include  someone “who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage his affairs.”  What this means is that there may be times that a concerned family member will consider filing for general or limited guardianship to protect the assets and well-being of a person who is a habitual drug abuser. There are many procedural due process protections built into the process of obtaining guardianship, but in life threatening situations there could be the opportunity for emergency limited intervention through the court system. At the point that the individual obtains treatment and regains his/her sobriety and capacity, s/he can return to court to scale back the limitations imposed by the guardianship. meanwhile, s/he can be protected against the hazards caused by the behavior and illness.

A court can find that an individual “lacks the capacity to perform some, but not all, of the tasks necessary to care for himself,” and can appoint a limited guardian with specific authority. The individual may not be functionally capable to arrange for insurance, manage assets, maintain a safe home, or consent to treatment. The individual’s funds may be dissipated due to severe impairment of decision-making and susceptibility to influence by other people with similar problems. The individual may be living in a truly hazardous situation as a result of the addiction. The protective arrangement statute , the guardianship statute and the special medical guardianship statute provide the framework to  enable a concerned person to come to the rescue in these situation.

If you are wrestling with how to provide the protection that you feel is needed for your adult child with drug addiction problems, call us at ….. 732-382-6070

Person under Guardianship still has the right to vote

When a Court enters an order in a guardianship action that finds a person to be “incapacitated,” the Court is required in New Jersey to consider the functional areas in which the person needs or does not need a surrogate decision-maker, and must fashion the least restrictive arrangement that is consistent with the individual’s best interests. The Court can structure the guardianship as a plenary guardianship or a limited guardianship. The functional areas include managing one’s own medical, financial, residential and educational decisions. In a plenary guardianship, the Guardian is appointed to make all decisions (in a manner consistent with the person’s best interests or specific expressed preferences if known). There are two fundamental rights that are not automatically removed by guardianship, but should be preserved to the person in the Judgment to avoid problems: the right to vote, and the right to marry.

The NJ Constitution in Art 2, § 1, ¶ 6, was amended in 2007 and includes the following language: “No person shall have the right of suffrage who has been  adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting.”  This means that to remove the right of suffrage from a person who is determined to be incapacitated, the Court must conduct an inquiry specifically into the person’s ability to “understand the act of voting,”  and must place that specific finding in the Judgment.

This may not be an applicable inquiry in many cases in which the extent of the person’s cognitive impairment is patent and extreme. But there could very well be situations especially with limited guardianship in which the person has long-held or deep-seated beliefs, has regularly voted, and is able to explain the “act of voting.”  Laws do vary state by state. Given how precious the right of suffrage is, advocates for the alleged incapacitated person may well want to put this issue on the table when the case is being heard by the Judge.

Call for legal advice on guardianship issues ……. 732-382-6070


There are some limits on what Guardians in NJ can do without court approval

A Legal Guardian is a person appointed by a court to be the decision-maker for a person who is incapacitated as defined by law, and unable to manage all or some of his/her affairs. The court rules provide the complex procedures (N.J. R. 4:86-1 et seq), but the powers and duties of the guardian, as well as further details about how the court has to handle the case, are found in the statutes, such as N.J.S.A. 3B:12-48, 12-49 and  12-50.

The Guardian “steps into the shoes” of the “ward” (incapacitated person), which means that unless the Judgment of Incapacity and Letters of Guardianship issued by the court have specific limitations in them, the Guardian of the Estate (Property) may take care of banking, contracts, insurance claims, applications for benefits and insurances, securities transactions, hiring and firing of persons to work for the ward, and so on. The Guardian of the Person may decide where the ward will live, obtain and consent to any kind of medical treatment, and may decline consent to some medical treatment, without obtaining further court approval. However, certain transactions do require court approval.

For example, the Guardian may not make gifts to other people with the ward’s assets or make changes to the form of ownership or titling of a ward’s assets without court permission. See N.J.S.A. 3B:12-49 (Court can authorize Guardian to do so); 3B:12-58 (gifts) and 3B:12-50 and 3B:12-62. Several cases in New Jersey have confirmed the authority of the Court to allows guardians to transfer assets: In re Trott (Estate Tax reduction planning – 1972); Matter of Manuel Labis (Medicaid planning transfers to spouse – 1998), and In re Keri ( Medicaid planning, transfers to adult children – NJ Supreme Court, 2004). Based on these precedents,  we have also obtained court authorization to transfer assets to disabled children or to trusts for family members. The plaintiff needs to include this request in the initial Complaint for Guardianship, or the Guardian will later need to file a Verified Complaint and Order to Show Cause, serve it on all the interested parties, and go back to court.

Also, the ward’s real estate may not be sold or mortgaged without court authorization. Again, a Verified Complaint is required, with service on all interested parties.The Court rules and specific procedures are at N.J. R. 4:94-1 to 7. The Court may authorize a sale if satisfied that it is in the ward’s best interest.See N.J.S.A. 3B:12-49. The guardian needs to provide the Court with proof of value and in some cases the actual proposed contract for approval.

I must say, we  have repeatedly encountered situations over the years in which guardians thought they could “make annual exclusion gifts” or sign contracts for sale of property without going back to court. Most situations have legal remedies, but complications can ensue if the guardian doesn’t have authorization, not the least of which is a cloud on the title of the property.

Call us if you are filing for guardianship or need  post-judgment court orders … 732-382-6070