Long Distance Caregiving During These Difficult Times

A well thought out plan is the key to effective long distance caregiving.
A well thought out plan is the key to effective long distance caregiving.

Trying to coordinate long distance caregiving is a challenge for many. Add COVID-19 into the mix, and the situation becomes even more difficult, reports the article “When your parent is far away and you are trying to care for them” from the Pittsburgh Post-Gazette.

If you are in the position of having to care for a loved one long distance, the starting point is to have the person you are caring for give you legal authorization to act on their behalf to make financial and medical decisions for them. A financial power of attorney (known as a Statutory Durable Power of Attorney in Texas) naming you as agent will allow you to help manage your loved one’s financial affairs.  It is also important that the person give you a HIPAA Release. HIPAA (Health Insurance Portability and Accountability Act) is the law that governs the use, disclosure and protection of sensitive patient information. With a HIPAA Release you will be able to receive medical information relating to the person you are caring for and to discuss matters with the person’s health care providers.

Next, find out where all of their important documents are, including insurance policies (long-term care, health, life, auto, home), Social Security and Medicare cards. You’ll also want to be able to access tax documents which will provide you with information on retirement accounts, bank accounts and investments. Don’t forget to ask your loved one for family documents, including birth, death, and marriage certificates, which may be necessary to claim benefits. Make copies of these documents so that you can make appropriate decisions for your loved one, even from a long distance.

Ask your family member whether he or she has completed their estate planning, and whether they want to make any changes. You may wish to review with your loved one changes that indicate when an estate plan should be updated. See https://galligan-law.com/when-to-update-your-estate-plan/.

Put all of this information into a binder, so you have access to it easily.

Consider setting up a care plan for your family member to take care of things that come up when you can’t be there. Think about what kind of care do they have in place right now, and what do you anticipate they may need in the near future? There should also be a contingency plan for emergencies, which seem to occur when they are least expected and which make long distance caregiving especially difficult.

A geriatric care manager or a social worker who can do a needs assessment can help coordinate services, including shopping for groceries, administering medication and help with food preparation, bathing and dressing. If possible, develop a list of neighbors, friends or fellow worshippers who might create a local support system that compliments your long distance caregiving.

Keeping in touch is very important. These days, many are doing regular video calls with their family members. Conference calls with caregivers and your loved one is another way keep everyone in touch.

Long distance caregiving is difficult, but a well-thought out plan and preparing for all situations will make your loved one safer.

Reference: Pittsburgh Post-Gazette (Sep. 28, 2020) “When your parent is far away and you are trying to care for them”

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Does Your Estate Plan Include Digital Property?

Many clients own digital property, but need estate plans utilizing new laws to control and protect their digital legacies.

One of the challenges facing estate plans today is a new class of assets, known as digital property or digital assets. When a person dies, what happens to their digital lives? According to the article “Digital assets important part of modern estate planning” from the Cleveland Jewish News, digital assets need to be included in an estate plan, just like any other property.

What is a digital asset? There are many, but the basics include things like social media—Facebook, Instagram, SnapChat—as well as financial accounts, bank and investment accounts, blogs, photo sharing accounts, cloud storage, text messages, emails and more. If it has a username and a password and you access it on a digital device, consider it a digital asset.  I wrote recently on this topic in response to Pennsylvania’s passage of a law addressing digital property, so see there for more details on what these assets are  https://galligan-law.com/new-digital-asset-law-passes-in-pennsylvania/

Business and household files stored on a local computer or in the cloud should also be considered as digital assets. The same goes for any cryptocurrency; Bitcoin is the most well-known type, and there are many others.

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) has been adopted by almost all states to provide legal guidance on rights to access digital property for four (4) different types of fiduciaries: executors, trustees, agents under a financial power of attorney and guardians. The law allows people the right to grant not only their digital assets, but the contents of their communications. It establishes a three-tier system for the user, the most important part being if the person expresses permission in an online platform for a specific asset, directly with the custodian of a digital platform, that is the controlling law. If they have not done so, they can provide for permission to be granted in their estate planning documents. They can also allow or forbid people to gain access to their digital assets.  Texas has such a law, and we prepare our estate planning documents to address such property.

If a person does not take either of these steps, the terms of service they agreed to with the platform custodian governs the rights to access or deny access to their digital assets.

It’s important to discuss this new asset class with your estate planning attorney to ensure that your estate plan addresses your digital assets. Having a list of digital assets is a first step, but it’s just the start. Leaving the family to plead with a tech giant to gain access to digital accounts is a stressful legacy to leave behind.

Reference: Cleveland Jewish News (Sep. 24, 2020) “Digital assets important part of modern estate planning”

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New Digital Asset Law Passes in Pennsylvania

The new PA digital asset law highlights the need to plan for your loved ones to have access to your digital assets after you pass.

More and more of our lives are lived online. We bank online, use email for everything, have Facebook, Twitter, Instagram accounts, keep photos on the cloud and have usernames and passwords for virtually every part of our online presence.  All of these things could be considered digital asset examples. However, what happens when we become disabled or die and our executor or a fiduciary needs to access these digital assets? Pennsylvania recently joined many states that have passed a law intended to make accessing these accounts easier, reports the Pittsburgh Post-Gazette in the article “New Pa. law recognizes digital assets in estates.”

The official name of the law is the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA. Pennsylvania is one of the last states in the nation—48th—to adopt this type of legislation, with the passage of Act 72 of 2020 (FYI Texas readers, the Texas legislature passed the Texas Revised Uniform Fiduciary Access to Digital Assets Act (TRUFADAA) in 2017). Until now, Pennsylvania didn’t allow concrete authority to access digital information to fiduciaries. The problem: the ability to access the information is still subject to the agreement that the user has with the online provider. That’s the “yes” we give automatically when presented with a software terms of service agreement.

Online service providers give deference to “legacy” contacts that a user can name if authority to a third party to access their accounts is given. However, most people don’t name a successor to have access or the successor is unaware of it, and most apps don’t have a way to do this.  I just this week received my first prompt from Facebook to name a legacy successor contact, and if Facebook is just starting that process, you can assume most other apps are far behind.

These laws are necessary because administering an estate with digital assets presents unique challenges.  With digital assets, first you have to locate the person’s digital assets (and chances are good you’ll miss a few). There’s no shoebox of old receipts, or letters and bills coming in the mail to identify digital property. The custodians of the online information (Facebook, Instagram, TikTok, Google, etc.) still rely on those contracts between the user and the digital platform.

Under the digital asset law, if the user does not make use of the online tool to name a successor, or if one is not offered, then the user can dictate the terms of access or non-access to the online accounts through estate planning documents, including a will, trust or power of attorney.  Most quality estate planning attorneys have included access to such assets in the documents they prepare, and we certainly do.

Here are some tips to help administer your digital assets:

Make a list of all your online accounts, their URL address, usernames and passwords. Share the list only with someone you trust. You will be surprised at just how many you have.  I did this a few years ago and was surprised to find it covered four pages.  You should also consider recording login information to your devices where you might store information.  Often people don’t keep paper records, so you can look for information on laptops, phones and similar devices.  Our estate planning binders actually provide a section to do exactly this.

Review the terms of service for each account to see if you have the ability to provide a name for a person who is authorized to access the account on your behalf, such as the Facebook example I provided.

Make sure your estate planning documents are aligned with your service contract preferences. Does your Power of Attorney mention access to your digital accounts? Depending on the potential value, sentimental and otherwise, of your digital assets, you may need to revise your estate plan.  This is especially true as our lives are likely to become even more digital in the future.

If you are interested in learning more on this topic, especially the practical components, Mary Galligan did an excellent article on this topic you can find here.  https://galligan-law.com/does-your-estate-planning-include-your-online-account-passwords/

Remember to never put specific private information in your estate plan such as account numbers, URLs, usernames or passwords, since your will becomes a public document once it is probated and your other documents may be shared as well. Your estate planning attorney will know how to best accomplish documenting your digital assets, while enabling access to them for your fiduciaries.

Reference: Pittsburgh Post-Gazette (Aug. 24, 2020) “New Pa. law recognizes digital assets in estates.”

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