Have you ever thought about who would make your medical or mental health treatment decisions if you could not because of incapacity due to an accident, illness or injury? You probably have thought about it, but have you done anything about it? What decisions would you want to be made in that situation?
If you have done no planning, no one would have the legal authority to act on your behalf during your incapacity without court involvement. In order to make these decisions, your loved ones would have to file a petition in probate court to have a guardian appointed. In guardianship proceedings, the probate court judge first makes a determination if you are legally incapacitated and cannot make your own personal decisions. If you are legally incapacitated, the judge appoints a guardian and then issues letters of guardianship indicating what your guardian can do. This is not the result that most people would want. Most people would rather have their family or someone they choose making these decisions without court involvement.
You can usually avoid the guardianship process and ensure that your medical and mental health care wishes will be honored through the completion of a Durable Power of Attorney for Health Care, also called a Designation of Patient Advocate. Without this important document, there may be the question about your wishes regarding medical and mental health care treatment and life sustaining measures.
Here is a brief description of the five primary health care directives typically included in a Durable Power of Attorney for Health Care and how they protect your wishes:
An Appointment of Health Care Agent, also called a Designation of Patient Advocate, is the directive you use to choose someone to speak for you if you are not capable of making your own decisions. This person, called a health care agent or patient advocate, uses your medical and mental health care instructions as guidance to make informed decisions about your care. It is important that you choose a trusted individual who will uphold your wishes when the time comes.
Advanced Medical Directives, also called living will provisions, are the directives you use when you are unable to speak for yourself to specify your medical preferences regarding end-of-life care and the withholding or withdrawing of medical treatment. These are the instructions you use to indicate whether you would or would not want a feeding tube, a ventilator, etc. and when to pull the plug. These directives can also be included in a separate document called a Living Will.
A Health Insurance Portability and Accountability Act (HIPAA) Authorization allows doctors and hospitals to give your confidential medical information to your health care agent so they can make informed decisions about your care and treatment. This authorization also allows your health care agent to release your protected health information to insurance carriers or other health care providers.
An Anatomical Gift Authorization also called an Organ Donation Authorization allows your health care agent to direct your wish to donate organs, other body parts or your entire body to those in need or for study.
A Mental Health Care Directive gives your health care agent the authority to make mental health care decisions on your behalf if you are not capable of making them on your own. These directives may also be included in a separate Mental Health Care Power of Attorney.
Completing these documents is crucial, but it’s still not enough. It’s also essential to do a few other things.
First, you should talk to your loved ones. Tell the persons you have chosen as your health care agents that you have selected them, and be sure they are willing to do it. You also need to talk to your family about your medical wishes, especially about end-of-life care. The more information your family has about your views, the more you will help yourself and your family should the need arise down the road to make decisions about your care. These discussions can help ease the emotional stress your family may feel in making difficult decisions about your care, particularly if you opt for less medical intervention at the end-of-life.
Second, if you have already completed these documents, it is important to review them periodically to make sure they still reflect your wishes. We recommend that you look at them at least once a year. It is especially important to update them if your family situation has changed (i.e., do you need to appoint a different health care agent?) or if there is a change in your medical condition. Also, changes in state or federal law can make it necessary to update your directives.
Third, it is also critically important that these directives be available to hospitals and doctors right away, especially in an emergency. One way to accomplish this is through a membership in an emergency access service for your health care directives such as Docubank®. It will get your health care directives to a hospital or doctor who needs them at a moment’s notice, anywhere in the world. This service also supplies a listing of your medical conditions and allergies, together with the names and phone numbers of your loved ones and your doctor, so they can be contacted in an emergency. As part of this membership you will receive a wallet card that instructs the hospital to call a toll-free number and the directives will be faxed to them promptly.
A Durable Power of Attorney for Health Care protects you and your family. Make your wishes known now – and prevent the conflict later.
By: Matthew M. Wallace, CPA JD
Published edited September 6, 2009 in The Times Herald newspaper, Port Huron, Michigan as: Prevent medical care conflicts in your family