I continue to get questions regarding estate planning basics. So I will continue with a discussion about making health care decisions. Have you ever thought about who would make your medical or mental health treatment decisions if you could not because of your 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 if you were in such a 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 then appoints a guardian and 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. This document is 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.
There are five key elements that I believe should be included in every durable power of attorney for health care. Here they are and how they protect your wishes:
Appointment of Patient Advocate. With an appointment of patient advocate, you choose someone to speak for you if you are not capable of making your own health care decisions. Your patient advocate, also called a health care agent, 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. It is a good idea to have at least two back-up patient advocates in the event that the prior appointee dies, is incapacitated or is otherwise unable to act.
Living Will Provisions. Living will provisions, also called advance medical directives, specify your wishes regarding end-of-life care. This includes the withholding or withdrawing of medical treatment at such time. You specify to your patient advocate when to pull the plug. Do you want your body to be kept alive if you are in a persistent vegetative state, in an irreversible coma, have a terminal illness and artificial means only prolong the dying process or have a condition in which the burdens of treatment outweigh the benefits. You can leave instructions for these situations to indicate whether you would or would not want feeding or hydration tubes, a breathing machine or CPR. In addition to being in your health care power of attorney, these directives can also be included in a separate document called a living will.
Health Insurance Portability and Accountability Act (HIPAA) Authorizations. One HIPAA authorization allows your patient advocate to have access to your confidential medical information to so he or she can make informed decisions about your care and treatment. A second authorization allows your patient advocate to release your confidential medical information to others, such as other health care providers or health insurance companies.
Anatomical Gift – Organ Donation Powers. You can give your patient advocate the power to make an anatomical gift of all or a part of your body or organs to those in need or for study. This allows you to have an agent to make sure that your anatomical gift happens. If you do not want to make such a gift, you can specify your patient advocate does not have such powers.
Mental Health Care Powers. By including mental health care powers, you give your patient advocate authority to make mental health care decisions on your behalf if you are not capable of making them on your own. Without these powers, your patient advocate may no be able to make certain mental health care treatment decisions relating to Alzheimer’s, dementia, depression, anxiety, etc. 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 patient advocates 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 patient advocate?) 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, doctors and other health care providers 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®. This service will get your health care power of attorney and related documents to a health care provider 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 receive a emergency wallet card that instructs the hospital to call a toll-free number to enter your member number and pin which allows your health care documents and other information to be faxed to them immediately.
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 December 4, 2011 in The Times Herald newspaper, Port Huron, Michigan as: Patient advocate makes decisions when you can’t