Posted by:  The Life and Legacy Planning Group

When it comes to your health care, especially during these uncertain times, you need to ensure that three estate planning documents, in particular, are up to date. These documents are commonly referred to as your advance health care directives:

  • The first is your Power of Attorney for Health Care. This document allows you to name a person to make medical decisions on your behalf or communicate your wishes in the event you are unable to.
  • The second document your estate plan should include is a Living Will. (It’s important to note that in some states, these two documents are combined into a single document.) A Living Will clearly spells out your wishes for the end of your life, such as, whether or not you want to be placed on life support if you are in a persistent vegetative state or have a terminal illness. Although it is one of the least discussed documents in an estate plan, it is just as important as the other documents. When reviewing your advance health care directives, it is crucial that you determine what your wishes are and that you meet with your estate planning attorney to confirm that your advance health care directives adequately reflect those wishes.
  • The last of the three advance directives is a HIPAA Authorization. The Health Insurance Portability and Accountability Act is a federal law that includes a provision protecting your health care information, and prevents that information from disclosed to anyone without your written authorization. Thus, a HIPAA Authorization allows you to name those people that have access to your health care information and also authorizes your doctors to discuss that information with your HIPAA Agents.

In addition to meeting with your estate planning attorney, you should have a meaningful discussion with the person you designate to make your health care decisions for you in the event you are unable to. Although this conversation will likely be uncomfortable for those involved, you should discuss the following issues, as well as any others you may think of, to guarantee that you are cared for in the way you want:

  • Do you have particular beliefs about health care or end-of-life care? Consider any spiritual, religious, or personal beliefs you have about your end-of-life care. For example, what are your beliefs about blood transfusions, organ donation, or artificial life support? Do you want clergy or other spiritual or religious leaders at your bedside before you die? Consider documenting these beliefs and wishes, perhaps even requiring that your health care Agent honor them when you cannot speak on your own behalf. Our office provides a written form to our clients, called Memorial Instructions, where you can make your wishes known.
  • What type of medical interventions do you want? When faced with end-of-life care in which you are not able to communicate your wishes, it is important that your chosen health care Agent understands the types of treatments you do or do not want administered. Depending on the situation, there could be a variety of treatments or interventions available, such as experimental drugs or procedures, ventilators, feeding tubes, or artificial hydration through an IV. You may want to document your specific wishes on these or other decisions.
  • Do you have different wishes based upon your medical condition or prognosis? Depending on your state, your advance directives might contain provisions on the care you will receive in either a terminal condition or persistent vegetative state. While advance directives do not memorialize “do not resuscitate,” or DNR orders (those are done by medical personnel with the advice of a physician), you may be able to direct your health care Agent (and those treating you) to remove medical interventions and cease medical treatment if you are in a terminal condition, as certified by a physician. Consider also if you have certain wishes regarding the discontinuation of interventions or treatment if you are deemed by physicians to be in an irreversible and persistent vegetative state.
  • Will your chosen health care Agent honor your wishes? This is one of the most important questions you must ask both yourself and your named health care Agent, and you should have confidence in the answer you receive. While you may be steadfast in your beliefs and decisions about your end-of-life care, if you are unable to communicate this information, someone else will have to make these decisions on your behalf. If the person you have chosen does not agree with you, and absent properly executed documentation of your wishes, your chosen health care Agent will be allowed to make whatever decisions the Agent believes are in your best interest. Even if your wishes are properly documented, will your Agent honor them if that person does not agree with your decisions, or will your Agent create an additional roadblock by challenging those decisions in a court of law? If you suspect that the Agent you have chosen will not honor your wishes, you need to update your Power of Attorney for Health Care immediately. You cannot predict when you will be in the hospital facing the end of your life, so you need to make sure that your documents are up to date and ready to be used at a moment’s notice.

We are here to help you
With health care at the top of everyone’s mind right now, we want to reassure you that we are here to help. Choosing the right health care decision-maker and clearly communicating your wishes for your end-of-life care are two matters that should not be taken lightly. We can assist you in determining who to name to this very important role and making sure that your wishes are clearly communicated in the appropriate documents. Give us a call today to schedule an in-person or virtual meeting.