Foreclosure Proceedings: Does the Fair Debt Collection Practices Act Apply?

The intent of the Fair Debt Collection Practices Act (“FDCPA”), enacted in 1978, is to protect consumers from unfair or abusive debt collection tactics. The Act sets forth clear standards which debt collectors must follow and establishes rights of the consumer with regard to these communications and procedures. However, as recently determined by the US Court of Appeals for the Ninth Circuit, the FDCPA does not apply to foreclosure proceedings.

In Barnes vs Routh Crabtree Olsen P.C., the borrower filed a complaint in federal court alleging that the mortgage loan owner, loan servicer, and attorneys violated the FDCPA by failing to make required disclosures and then proceeding with illegal foreclosure actions. The court ruled in the loan owner’s favor, and that ruling was later upheld in appeal.

The decision came down to definitions of “debt collection” and “debt collector.” The Ninth Circuit noted, “[t]he crux of the parties’ dispute is whether the defendants’ pursuit of judicial foreclosure was a form of debt collection.” It then explained that the FDCPA’s definition of “debt” boiled down to “a consumer’s obligation to ‘pay money.’”

With regard to the definition of a “debt collector,” the Court found that “since the FDCPA defines ‘debt collector’ as someone ‘who regularly collects or attempts to collect … debts owed or due or asserted to be owed or due another[,] … an entity that collects a debt owed itself—even a debt acquired after default—does not qualify under this definition.”

As the Court reminds us, the FDCPA is designed to regulate those whose principal business is debt collection with regard to money owed by a consumer to a third party. By contrast, the enforcement of a security interest – such as a mortgage – does not qualify as an attempt to collect money from a debtor.

The borrower argued that the loan owner “crossed the line into debt collection by including in its foreclosure complaint a request for a money award.” However, the Court rejected that reasoning, saying that the request “served simply to identify the amount of the debt secured by the property, which authorized a sheriff’s sale to discharge that liability in the same manner as for a typical judgment debtor.”

In conclusion, the Court affirmed that “[a] judicial foreclosure proceeding is not a form of debt collection when the proceeding does not include a request for a deficiency judgment or some other effort to recover the remaining debt.”

For more information on foreclosure proceedings, contact the real estate attorneys at Larson & Solecki LLP.

Medical Emergency Information for Parents of College Students

It’s no secret that we’re all more conscious of our health and our family’s health because of the current global pandemic.

Which leads me to ask: Have you ever wondered who has the authority to make medical decisions for your college age adult children? Do you have that authority merely because you are the parent?

If you have a son or daughter heading off to college soon, who is an essential worker, or just turning 18, read on.

In these uncertain times there is more reason than ever to ensure that you have authorization to discuss your college age child’s medical information. This includes the ability to make medical decisions in the event your child is unable to make decisions for themselves.

Whether you are sending your kids off to college, or they are attending college virtually, the threat of contracting COVID-19 is real. Even without the current global pandemic, there is a myriad of accidents and illness that could affect your young adult child. It’s unlikely that you picture them enduring a serious medical emergency. And if you do, you write it off as normal parental anxiety. The unfortunate truth is that, yes, anyone of any age could experience a life- threatening health crisis, and that has never been more true than now.

Due to HIPAA regulations, you could be shocked to discover that the hospital will not discuss your child’s treatment, nor allow you to make certain decisions regarding their medical care if he or she has reached age 18. This is true even if your child is still covered by your family health insurance plan.

If your son or daughter is conscious and able to sign a document, they can give authorization to share details of their treatment with you (or with anyone else of their choosing). This obviously isn’t an option if your child is unconscious, on a ventilator, in too much pain, or sedated for surgical treatment. This is the worst time to find out that you do not have access to medical information, cannot make decisions about your child’s treatment or care, and that you legally have no authority without court intervention.

With proper planning you can protect yourself and your child from this scary and frustrating result. Here’s how:

HIPAA Authorization

Your son or daughter can sign this form, and file it with their primary medical provider. Some universities even ask students to fill out these forms in case of emergencies. If your child names you on the document, doctors and nurses can discuss their medical care with you. If your child is nervous about privacy issues, remind them that only information pertinent to the emergency will be discussed. A HIPAA authorization does not necessarily grant you free access to their entire medical file. Your child can specify that sensitive information about their sex life or mental health treatment, for example, are not to be shared.

Advance Health Care Directive

An Advance Health Care Directive provides a medical power of attorney and means that you will be able to make medical decisions on your child’s behalf, in the event that he or she is incapacitated. This document also states the individual’s wishes regarding life-sustaining interventions and organ donor wishes.

Durable power of attorney

Durable power of attorney extends rights a bit further, allowing you to take care of financial matters and other non-medical matters during your child’s illness. A power of attorney is also a good idea in the event that your son or daughter wishes to study abroad. You can take care of certain important matters, like filing taxes, paying bills, managing student loan money, and so on. Be sure to discuss these important matters with your 18-year-old or older child. No one, especially a teenager, wants to find themselves hundreds of miles from home, injured, and in the care of strangers. By meeting with an estate planning attorney now, you can prevent these difficulties in the event that they arise. Now more than ever, time is of the essence. Be prepared.

What Business Owners need to know – Paycheck Protection Program

PPP Explained

As most business owners know by now, the Paycheck Protection Program (PPP) was launched in April 2020 with $349 billion in funding. The first round was exhausted in less than two weeks. Congress then voted on April 21 for an additional $310 billion in funding. However, the program soon ran into trouble due to controversies over publicly traded companies and other large enterprises being awarded loans. Additionally, concerns and confusion about the attainability of loan forgiveness under the program’s unclear rules, plus a lack of access for small businesses without an established banking relationship, have plagued the program since its inception.

Congress established the PPP to provide relief to small businesses during the coronavirus pandemic as part of the $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136. The legislation originally authorized Treasury to use the SBA’s 7(a) small business lending program to fund loans of up to $10 million per borrower that qualifying businesses could spend to cover payroll, mortgage interest, rent, and utilities.

Changes to PPP

On June 3, the U.S. Senate passed the House version of the Paycheck Protection Program Flexibility Act (PPPFA), giving small businesses more time and flexibility to use their PPP loans with the aim of maximizing loan forgiveness.

Possibly the most significant change to the PPP is the reduction in the requirement that 75% of loan proceeds be spent on “payroll costs.” Under the PPPFA now, 60% of loan proceeds must be spent on “payroll costs.” The PPPFA also extends the 8-week “covered period” during which borrowers were required to use their PPP loan proceeds, to a much longer 24-week period.

Here are some other important changes:

  • The PPPFA extends, until December 31, 2020, the current June 30, 2020 “safe harbor” deadline for borrowers to rehire employees and reverse salary cuts of greater than 25 percent.
  • The legislation includes two new exceptions allowing borrowers to achieve full PPP loan forgiveness even if they do not fully restore their workforce. Previous guidance already allowed borrowers to exclude from those calculations employees who turned down good faith offers to be rehired at the same hours and wages as before the pandemic. The PPPFA will also exempt borrowers from the proportional reduction in loan forgiveness due to a reduction in employees, if the borrower is able to document in good faith that for the period of February 15 to December 31, 2020, the borrower was unable to:
    • Rehire employees who had been employed on February 15, 2020, or hire similarly qualified employees for unfilled positions by December 31, 2020; or
    • Return to the same level of business activity at which the borrower was operating before February 15, 2020, due to compliance with federal requirements or guidance set forth between March 1 and December 31, 2020, relating to standards of sanitation, social distancing, or other worker or customer safety requirements related to COVID-19.
  • New borrowers now have 5 years to repay the loan instead of 2. Existing PPP loans can be extended up to 5 years if the lender and borrower agree. The interest rate remains at 1%.
  • The bill allows PPP loan borrowers to also delay payment of their payroll taxes, which had been prohibited under the CARES Act.

Loan Forgiveness – Dealing with Confusion and Uncertainty

There is no doubt that there is still much uncertainty over some of the program details. However, business owners should be aware that there is no necessary rush to file their PPP loan forgiveness applications. Currently, lenders who will ultimately be responsible for processing forgiveness applications are still waiting for final guidance from the Small Business Administration (SBA) and U.S. Treasury. There is no definite timeline for when needed guidance will be received from the federal government. Additionally, the deadline for filing new PPP loan applications has been extended through August 8, 2020.

Even still, all business, and especially small business, are now understandably agonizing over whether they will meet the requirements necessary to maximize loan forgiveness. Being a patient and prepared business will ultimately be the key to maximizing forgiveness. Make sure that you keep good books and records relative to how loan proceeds are used. Be sure to gather and safe keep documentation necessary to support costs/expenses (i.e., non-payroll costs, mortgage interest, lease payments, or utilities).

Finally, remember that while the recent changes to the PPP provide needed flexibility and are generally good for borrowers, there will be more changes and added complexities. If you have any questions about the PPP program or need additional guidance contact one of our attorneys. We are here to help.

Sellers: Why Full Disclosure is Critical

A Seller’s Worst Nightmare

Once a seller has closed escrow and possession has been provided to the buyer, the last thing the seller wants to do is  revisit the sale. This might come some time later through a claim for damages by the buyer. In order to reduce the chance of claims from a buyer, the single most important action a seller can take during escrow is to properly disclose any issues with the home. A significant majority of transaction-related lawsuits are filed by buyers against sellers alleging that the sellers failed to disclose. For example, a buyer might say, “You did not tell us about the leak that you had in the master bathroom that flooded the downstairs.” The ounce of prevention that will avoid this situation is extremely simple – use the disclosure forms provided by your real estate agent to fully and properly disclose anything that might reasonably affect the value or desirability of your property. That last statement, by the way, is the legal standard that governs disclosures.

Why Sellers Do Not Like To Disclose

Typically, a failure to disclose lawsuit occurs because the seller did not advise the buyer of some facts that turn up later as expensive repair items for the buyer. Why does a seller not tell a buyer of the defects in their property? Usually it is because they believe that if they tell, the buyers will not purchase their property. That belief is simply wrong most of the time. Experience shows that most buyers will come to terms with a “defect” issue disclosed during escrow, especially if the matter is disclosed up front when they are most excited about their purchase. In those cases where the buyers do elect to cancel, the sellers should be thankful, not upset, because the buyers absolutely would have found out eventually, when money that they would have invested in new carpet, for example, instead goes to fix the defect. At that point the buyers’ disappointment turns to resentment against the sellers and they have no other recourse but to make a claim against the sellers. Given the costs that are typically necessary to defend a claim, the sellers’ proceeds from the sale are quickly swallowed up by mediation, arbitration and/or litigation costs, which quickly turn into many thousands of dollars – the legal process is designed to be expensive!

Disclosure: The Best Insurance against Future Claims
Full disclosure is, in reality, the cheapest form of lawsuit insurance for a seller as it costs nothing. Under California law, sellers are required to disclose anything that might reasonably be an issue affecting the value or desirability of the home. Sellers should not try to decide what is and isn’t important, because the standard is not what is important to them. Instead, a seller should disclose everything that the seller knows about the property. Sellers should think of each individual bit of disclosed information like a lawsuit inoculation against stressful and expensive litigation related to that disclosed fact. It is one less thing for buyers to later complain about. Sellers should be especially careful to disclose a condition even though they might believe it has been “fixed.” It is amazing how many problems that have been “fixed” end up breaking again a month or so after the close of escrow. Disclosure of an old “fixed” problem typically has absolutely no effect on the sale as it is usually viewed by the buyers as one less problem to be concerned with. If an undisclosed “fixed” problem is discovered after the fact, however, when the “fix” breaks, the buyers often believe that the sellers were intentionally hiding things and hard feelings and a dispute almost always result.

A Simple Rule
Sellers, ask yourselves the question, “Do I want to disclose this?” If the answer is no, you should disclose it. Think about it: why would you not want to disclose unless you believe that disclosure of the information would hurt the chance of a sale? Follow this simple rule – disclose, disclose, disclose – and you will have done everything possible to eliminate the chance that you will ever be a defendant in a lawsuit over the sale of your property.

Commercial Landlords and the Pandemic

As the pandemic hit, the government ordered businesses to close. Now, as businesses start to reopen, restrictions are in place. Tenants stopped paying rent under their leases due to the impacts of COVID-19. In many cases this caused financial hardship to landlords. While the tenants remain liable for the missed rental payments, it may be in everyone’s best interest to pursue a mutually acceptable agreement to ensure that the tenants can continue their business. It is important that commercial landlords do the following before entering into an agreement with the tenant.

Review of Lease. You should review the lease terms related to the payment of rent, force majeure, late charge, interest on late payments, continuous operations, inducement recapture, security deposits, and notice requirements.

Impact of Potential Vacancy. If rent relief is not provided and the tenant eventually goes out of business, how will the vacancy affect you, including the ability to pay any mortgage on the property? Will it be difficult to lease the property to a new tenant?

Verification of Tenant’s Financial Condition. Ask the tenant how the pandemic is affecting their business, including financial documentation (if available) to support the tenant’s claims. Most leases provide that the landlord can request financial information from the tenant, and tenants should be compliant with such a request.

Landlord Defaults. Finally, make sure that you, the landlord, have complied with all terms of the lease. A landlord default may provide the tenant with a basis for not paying the rent and/or terminating the lease.

Rent Relief Alternatives. Under the law you do not have to provide the tenant with rent credit or abatement. You only have to allow a deferral of the rent until a later time. But carefully consider the financial impact of losing the tenant. This includes having the property vacant and the cost of finding a replacement tenant. You may agree to defer some of the rent while at the same time, offer rent abatement or a short term rent reduction so that you can retain a tenant who up until the pandemic had been a good tenant.

Lease Modifications. If you do reach an agreement with your tenant, make sure that you confirm that agreement with a written lease amendment so that there are no future misunderstandings.
The bottom line is, an occupied property with a known tenant is always better than a vacant property, even if you have to give up a little financially. If you have questions, check with counsel to make sure that you fully understand your rights. Plus, document properly the results of any negotiations with a tenant.

Notarization in a COVID-19 World and in the State of California

Many documents require a notary. Trusts, powers of attorney, loan documents, and deeds are a few examples. But during a global pandemic, how does one safely get documents notarized? This question is being asked a lot lately. Unfortunately, there is a lot of misinformation out there regarding online notarization. And despite what you might have heard or seen, California still requires in-person notarization.

In the midst of the coronavirus and state-wide stay at home orders, companies, estate planners, lenders, and the general public are struggling to close transactions. A big roadblock is the difficulty and potential danger of getting documents notarized. As most know, notarization is the official fraud-deterrent process that assures the parties to a transaction that a document (or at least the signature on the document) is authentic and can be trusted. It is three-part process performed by a notary public, and includes vetting, certifying and record-keeping. In California, it requires an in-person meeting and close contact.

Currently, California law does not provide the authority for California notaries to perform a remote online notarization (RON). The personal appearance of the document signer is required before the notary public. Notaries in California are considered essential workers, and in-person notarization is still possible during the current state-wide stay at home order.

As of the end of March, 23 states have enacted RON laws, and 17 are currently in effect. In some states, RON services are currently permitted by an emergency guidance or executive order. In early April a coalition of trade associations led by the California Land Title Association sent a letter to Governor Newsom requesting the issuance of an executive order expressly providing or affirming that California law recognizes the validity of documents legally remotely notarized outside the state.

The letter notes that, by allowing Californians to utilize RON services, real estate transactions and projects such as refinances and home construction could be completed in compliance with state and county shelter-in-place orders. The letter also points out that the order would codify written guidance recently issued by the California Secretary of State in communications to the National Notary Association.

In addition to the current push to have Governor Newsom issue an emergency guidance or executive order, in January of 2019, well before the uncertainly and disruption caused by the coronavirus pandemic, AB-199 was introduced. AB-199, also known as the California Online Notary Act of 2019, would have authorized remote online notarization in California by permitting an online notary to conduct a notarial act using secure two-way interactive audio and video communication. If enacted, the online notary must be approved by the Secretary of State after undergoing specialized training and testing. The Secretary of State would be directed to draft regulations to implement the law and develop data and technology-neutral standards. Additionally, this technology will require the signer’s presentation of a photo ID, credential analysis, and identity proofing. Unfortunately, AB-199 is currently a dead bill, and as of February of 2020 the bill was filed with the Chief Clerk and is awaiting further action.

So, what is the best practice without RON services in California?

  • First, don’t be fooled by notaries offering online or skype notarization. California notaries are not authorized to offer RON services of any type. Further, out-of-state notaries performing RON services for California persons or documents governed by California law are not currently legally recognized as a valid notarization.
  • We recommend utilizing the services of a mobile or in-house notary who is practicing and utilizing social distancing as much as possible, uses single use pens, and wears gloves and a mask. Further, we recommend that you ask questions before making an appointment with a notary to ensure that all the necessary and reasonable precautions will be performed.
  • For a single document, we also recommend that you use the services of a local in-house notary at a bank or mail and packaging business, like a UPS Store or a Mailboxes, Etc. These business are already open, considered essential and generally have social distancing measure in place.
  • Finally, bring your own pen, wear a mask and gloves and do not have documents notarized if you or anyone in your home are showing the symptoms of illness.

Last but not least, be safe and stay well.

Selling a Home in the Time of COVID

If you think you can’t sell a home right now because of COVID-19, you should reconsider your thinking. Real estate is deemed an essential service. That means that people are still buying and selling real property in California. The reality is that transactions are still occurring. But the way the real estate business is conducted has radically changed, at least for the foreseeable future. Those familiar open house signs on the weekend are gone. A buyer can’t just go to a listed property. There are specific rules in place which must be adhered to. But, viewing and buying a home can still happen, and there are agents out there to help you with that process.

Realtors have adjusted to the new market by utilizing drones more often for photographs, holding virtual open houses, and making full use of virtual tours. Listing presentations can be emailed and viewed by the potential client in their own home at their leisure. This provides the client more time to consider the services that the realtor can provide. Realtors can get together with other Realtors for virtual caravans to showcase their listings and buyer needs. It is more likely you will get more people at an 8:00 am virtual meeting than you will an 8:00 am meeting in a public space. This might mean greater exposure of a property for the seller.

There are safeguards in place to protect buyers and sellers in this new environment.

1. Disclosures should be completed regarding anyone in the house or coming to the house who may have been exposed to COVID-19.

2. There will be assurances that the property has been cleaned and/or disinfected before and after any showings.

3. Persons entering a property should wear masks, gloves, and booties to assure that the property remains as clean as possible and dispose of them immediately.

4. Before a showing the seller or listing agent should open up interior doors so as to minimize the amount of contact that a potential buyer will have with the property.

Once you’ve received that perfect offer, you can open escrow virtually, use electronic signatures for most of the documents and mobile notaries for any other documents. Escrow and title companies are working to assure that you have a smooth and safe transaction while maintaining social distance.

While it may seem odd to sell a house without a lot of personal contact, it is possible. Further, it can actually be an enjoyable process because you are working within your own relaxing environment. Your realtor is only an email, text, or phone call away at any time to answer your questions.

San Diego is a strong real estate market. It may be even stronger when the economy bounces back. Think about exploring the opportunities now, while others may be too afraid or preoccupied to look for a home.

Written by Victoria Boynton

SECURE Act Provisions Impact Estate Planning

In December of 2019, President Trump signed the Setting Every Community Up for Retirement Enhancement (SECURE) Act. Aimed at making retirement planning accessible to more Americans, the Act triggered changes to IRA contributions and withdrawal schedules. But with regard to treatment of IRAs after the account holder’s death, the Act necessitates a review of estate plans to ensure that wishes will be followed as originally intended, and without triggering unintended negative consequences for beneficiaries.

The primary concern is the elimination of the “stretch” IRA. Before the new law, those who inherited an IRA could draw out the funds over their own lifetimes, thus stretching the deferral of income taxes until withdrawal. Beginning in 2020, all assets within an inherited IRA must be withdrawn by beneficiaries within ten years, with all associated taxes paid at withdrawal.

Certain exceptions to the new rule do exist: Spouses who inherit IRAs are not subject to the ten-year rule; nor are minor children or children who are disabled or chronically ill. When minor children reach age 18, the ten-year rule then applies (essentially requiring all withdrawals be made by age 28).

In the past, stretching out distributions from inherited IRAs essentially meant that beneficiaries could leave assets in the account to compound over time while deferring income taxes. Since all assets must now be withdrawn within ten years of the original account owner’s death, unless an exception applies, estate planning may need to be adjusted or rethought to address the changes to retirement planning under the new law. Without proactive planning, beneficiaries might face difficulties with regards to tax or financial planning.

In light of the changing law, which took effect January 1, all estate plans should be reviewed and necessary changes made. IRA owners should consider:

  • Beneficiary designations
  • Potential tax implications for beneficiaries
  • Revision of the will
  • The possibility of establishing a trust as beneficiary of IRA assets, or altering an existing trust

Given the broad scope of the SECURE Act and sweeping changes enacted by the law, certain other actions may be necessary with regard to planning for IRAs. Call our estate planning attorney for more information regarding the new legislation and its impact upon your particular circumstances.

This content is not to be construed as legal advice, and given that some information can become outdated, no representations are made that the content is error-free. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

How Buyers and Sellers Should Approach Repairs During a Home Sale

Buyer’s Request for Repairs

You finally found the home to buy, are in escrow, and have completed your home inspection. The home inspection lists pages of items which may need repair and/or replacement. So now what?

As a buyer you may want to send the entire home inspection report to the seller and request that the seller fix everything. But before you do that, remember the following:

1. Houses in California are sold in “as-is” condition. That means that the buyer takes the property in the condition that it is in when the buyer makes the offer to purchase. A seller is under no obligation to fix anything (or technically even respond to your request), nor are repairs a contingency under the contract.

2. Home inspectors point out all the flaws in the property, some of which are an inexpensive quick fix or are just old and may require fixing in the future.

3. Most sellers are living in the home and aren’t bothered by some of the minor issues brought out in the home inspection report. They may be insulted by a large repair request, causing them to refuse to do any repairs.

So what do you do? Look carefully at the home inspection. Identify those items which are deal breakers for you. For example, if the kitchen faucet is old and drips but there is a hole in the roof, request that the roof be repaired, vs. the faucet. Keep your repair requests reasonable. That should not overwhelm the seller who will be more likely to agree to some if not all of your requests.

Real estate agents will often suggest requesting a lump sum of money as a credit instead of asking for a list of repairs. You get to oversee your own repairs instead of relying on someone who is about to vacate the home to repair them, and you may be able to stretch the repair dollars further. It is just an option to consider.

Remember, you are buying a home that is “used.” You should expect that there will be flaws. Make sure that you are aware of those flaws and can live with them.

Seller’s Response to Request for Repairs

Your family home is in escrow. You are looking forward to closing the sale. The buyer has done a home inspection. The buyer then sends you a copy of the inspection report requesting that you complete all of the recommended repairs.

Before you get angry and refuse to do any repairs, pointing out to your agent that the home was sold in “as-is” condition, take a breath. Look at what the buyer is requesting. While a seller is not obligated to make any repairs for the buyer, and it is not a contingency of the sale, going through the request for repairs is a wise thing to do. Then decide what, if any, repairs you are willing to make. This can help keep the transaction moving forward to close of escrow.

If you as the seller want to make repairs or hire someone to effectuate those repairs, you can. But often times the better route is to provide the buyer with a credit through escrow for those repairs. Why would you want to credit the buyer instead of making repairs? The answer is simple: if you don’t do the repairs or hire someone else to do the repairs, you have minimized your liability for the repairs should they not be completed to the satisfaction of the buyer. The buyer gets a credit for the repairs and takes on all of the responsibility for the repairs.

As the seller, you know your home and have lived with the flaws. But a buyer is not always willing to take on those issues. By keeping an open mind and working with the buyer, you can probably reach a mutually acceptable agreement for repairs — or credit — so that everyone is happy with the home.

This content is not to be construed as legal advice, and given that some information can become outdated, no representations are made that the content is error-free. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

Who Makes Health Care or Financial Decisions for You or Your Family in a Pandemic?

It is no secret that we have entered a new world, and in times of crisis most of us share similar fears and concerns. We are all worried about our families, our friends, and our financial well being. We all are asking ourselves the same questions: What happens if I get sick? What happens if my children, spouse or other relatives get sick, become incapacitated or even die? In times of crisis (especially a health crisis) there is no substitute for having good information and planning ahead. Is your family prepared?

Until now, it is unlikely that you picture your children or spouse enduring a serious medical emergency. If you do, you write it off as normal parental or familial anxiety. But the unfortunate truth is that, yes, anyone of any age could be effected by the Coronavirus (COVID-19).

Due to HIPAA regulations, you might be shocked to discover that the hospital will not discuss your child’s treatment, nor allow you to make certain decisions regarding their medical care, if he or she has reached age 18. This is true even if your child is still covered by your family health insurance plan, and it is also true relative to decisions regarding your spouse, parents, or family friends.

If your adult child, spouse or parent is conscious and able to sign a document, they can give authorization to share details of their treatment with you (or with anyone else of their choosing). This obviously isn’t an option if your adult child, spouse or parent is unconscious, intubated, in too much pain, or sedated for treatment. You all might find yourselves wishing this authorization could have been given at some prior time.

With proper planning you can do exactly that. Here are key documents that can save you undue disruption and heartache, should a time come when you will need them.

HIPAA Authorization. Your relative or even a close friend can sign this form and file it with their primary medical provider. If your child, spouse, parent or friend names you on the document, doctors and nurses can discuss their medical care with you. If your relative or friend is nervous about privacy issues, remind them that only information pertinent to the emergency will be discussed. A HIPAA authorization does not necessarily grant you free access to their entire medical file. Your child can specify that sensitive information about their sex life or mental health treatment, for example, are not to be shared.

Advance Health Care Directive. An Advance Health Care Directive provides a medical power of attorney that means you will be able to make medical decisions on behalf of your child, spouse, parent or friends, in the event that he or she is incapacitated. This document also states the individual’s wishes regarding life-sustaining interventions, end of life decisions, and even organ donor wishes.

Durable power of attorney. Durable power of attorney extends rights a bit further, allowing you to take care of financial matters and other non-medical matters during your friend or relative’s illness. You can take care of certain important matters, like filing taxes, paying bills, managing student loan money, and so on.

If you have a son or daughter who has returned home from college, is just turning 18, or any one close to you that does not already have these documents in place, discuss the importance of these matters.

During this time of incredible uncertainty our attorneys stand ready to assist you with all of your immediate estate planning needs. We are currently available for remote meetings and available to answer your questions. In times of crisis and uncertainty information is power, and there is no substitute for good planning. We are here to help.

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