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What is an Advance Health Care Directive?
A legal document which includes a living will and a power of attorney for medical reasons.
A living will is a patient's oral or written directions concerning a health care decision. These instructions are meant to guide health care professionals with medical decisions of an individual who is incapacitated. The principal can inform healthcare professionals and family members under what circumstances they would like to be resuscitated or when life-sustaining treatment should be allowed, withheld or withdrawn.
The power of attorney for medical reasons facilitates the naming of an agent to follow the directions outlined in the living will. Naming an agent is a very important decisions because it allows that individual to step into the shoes of the incapacitated individual to make decisions on their behalf.
Care must be taken when naming an agent. The person named must be responsible, mature and capable of making tough decisions. It might be unwise for a parent to name their young adult child as the agent because that child might be incapable of deciding to withdraw life-sustaining support from their parent, in accordance with the living will's instructions. The principal (person creating the advanced health care directive) should consult with the prospective agent to make that he/she is willing to take on the job. A successor agent should also be named in the event that the primary agent is unable to or is unwilling to accept that role.
The authority of the agent named in the advance health care directive becomes effective if the principal is incapacitated and is terminated once the principal regains capacity or dies.
This document does not give the agent the power to make financial decisions on behalf of an incapacitated individual so a separate document (power of attorney for financial reasons) should be created.
Click here, for more information on Powers of Attorney
HIPAA Privacy Rule
Health Insurance Portability and Accountability Act of 1996 is a federal law governing a patient's rights regarding the dissemination of the medical information. Although this rule mostly affects the health industry, it requires written authorization from the patient before certain health information can be released. Advance health care directives should therefore include express HIPAA authorization to ensure that the agent will be able to have access the the patient's medical information to make the necessary decisions.
Trusts should also contain express HIPAA authorization language. A successor trustee will need to have access to your medical information when trying to establish your incapacity in order to manage your finances if you cannot. If the trustee does not have access to this information, the trustee will be unable to make management decisions such as filing medical insurance or medicare claims on your behalf.
You should consult an Orange County Estate Planning Attorney to make sure that your advanced health care directive or trust documents contain the proper HIPAA authorization language to ensure that your agents and trustees will be able to access your medical information and make effective decisions on your behalf.
We never know if or when we might become incapacitated until its too late to do anything about. No story illustrates this point more fully than the Terry Schiavo Case, a 15 year battle of wills between Terry's husband and her parents. Terry was 26 years old when she became incapacitated. She wasn't thinking that she could have ended where she did. A properly executed health care directive would have informed the doctors, judges and most importantly her family as to her wishes and that 15 year ordeal could have been avoided.
To let your wishes be known, contact a estate planning attorney today for your properly executed advanced health care directive.