By Robert J. Green
So you have done the responsible thing by getting all of your estate planning documents in order and now you have to put them somewhere. So, where should that be? And, what should you do with those documents if you are traveling for an extended period of time? Let’s take a look.
In general, I suggest having original estate planning documents in a safe and secure location like a fireproof safe, a safe-deposit box, or at your attorney’s office. If you do use a safe or safe-deposit box to store your documents, it can be a good idea to make sure a trusted person other than you can access those documents if you cannot. If you are incapacitated or deceased, a court order will likely be necessary to get a bank or a locksmith to open your safe-deposit box or home safe if no one else has access.
Note that a photocopy set of the same documents can be kept more readily accessible, but should still be safe and private. If you are traveling for an extended period of time (or during a time when your health is seriously compromised), a photocopy set of the same documents should come with you. Photocopies of these documents are sufficient for almost any purpose as long as the originals can be quickly located and obtained if necessary.
The documents we are talking about here should include copies of your Financial Power of Attorney and Health Care Power of Attorney, your Last Will and Testament and Living Trust (if you have a Living Trust), as well as your Living Will, and a Physician’s Orders for Scope of Treatment (“POST”) Form – sometimes known as a “do not resuscitate” document (again, that is if you have a POST Form – many people do not).
Another useful document to think about in this context is a universal HIPAA Authorization. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulates a health care provider’s ability to release information about you to third parties (such as your family members and close friends). You can sign a HIPAA Authorization that lists the people to whom you would want your various health care providers and any hospital to release information about you if you are unable to give consent due to some form of incapacity.
Imagine that you are traveling and wind up in a hospital in another city or state. If you are not conscious or not able to communicate effectively, you will not be able to tell the hospital to whom it may release information about you and your condition. It can be excruciating for a family member or close trusted friend to be told over the phone by hospital staff that they are not permitted to answer even basic questions about you or your condition because of your inability to authorize the hospital to release such information.
However, if you have planned ahead and executed a universal HIPAA Authorization, that document will include the names of all the people you have pre-authorized to receive detailed information about you from any hospital or healthcare provider. I suggest that our traveling clients always travel with a copy of that document. But, even more importantly, I suggest that clients provide a copy of that document to each person the client has listed as a person authorized to receive information. For example, imagine that you get into a car accident in Arizona. Now imagine your son or daughter calls the hospital where you have been taken and he or she is told that the hospital cannot tell them anything more than the fact that you are at the hospital and are alive. This is so frustrating for your loved ones. However, it relieves so many problems if your son or daughter can tell the hospital that they have a universal HIPAA Authorization already signed by you allowing the hospital to give your child whatever info they seek. Then your child can fax or email that Authorization to the hospital and get their questions answered right away.
If you have any doubts about whether you have all the documents you need before traveling, or where your original and copied documents should be located, do not hesitate to speak to a qualified estate planning attorney. Some law firms, like mine, will even offer free consultations concerning creating or reviewing estate planning documents. Take the time to be sure your planning will result in your desired outcome.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.