Part of estate planning is planning for incapacity. Incapacity planning includes planning for health care decisions as well as financial decisions. In this article we will concentrate on the health care side of planning.
There are three essential legal documents for making health care decisions that every person should have in place.
Health Care Power of Attorney
This legal document, also called an Advance Directive or Medical or Health Care Proxy, gives your agent the authority to make health care decisions for you if you cannot do so because you have become incapacitated, whether permanently or temporarily.
Without a health care power of attorney, an incapacitated individual will need a court appointed guardian to make health care decisions for him or her. In an emergency, medical providers are going to take measures to stabilize a patient’s condition but once the emergency has abated, they will need someone with authority to make decisions. So being next of kin may allow you to make short term decisions in an emergency but not long term health care decisions.
Living Will
This legal document is your direction that you do not want life-sustaining treatment if you become incapacitated and you are permanently unconscious with no hope of recovery.
While everyone should have a Health Care Power of Attorney, a living will is an optional document. Your agent under your Health Care Power of Attorney has the ability to make end of life decisions in consultation with two physicians.
Some people like having their agent involved in the decision making and will not have a living will. Other people may feel that is a burden to put on the agent and so they will use a living will. The decision is up to each person.
A living will is not the same as a DNR or a do not resituate order. A DNR may only be put in place after consulting with a physician and is not a document that attorneys can prepare. These are mostly used in situations where an individual is in a terminal condition and would not want to receive medical care.
HIPAA Authorization
Federal and state laws dictate who can receive medical information without the written consent of the patient. This legal document gives your doctor or other health care provider the authority to disclose your medical information to the agent selected by you.
How to Choose the Right Agents for Health Care Decisions
Having the correct documents in place is one part of a plan. Having the correct agents named is an important aspect of that plan. You need to carefully consider who to choose as your agent or agents and then discuss your decision with that person or persons to confirm that they will in fact be willing and able to serve.
Factors you should consider when deciding who to name as your health care decision makers include:
- Where does the agent live? With modern technology, the distance between you and your agent should not matter. Nonetheless, someone who lives close by may be a better choice than someone who lives in another state or country.
- How busy is the agent? If your agent has a demanding job or travels frequently for work, then they may not have time to take care of your medical needs.
- Does the agent have expertise in the health care field? An agent with work experience in medicine may be a better choice than an agent without it.
You should also have conversations with your agent about your wishes. A great resource to start that conversation is The Conversation Project https://theconversationproject.org/
Is Your Health Care Incapacity Plan Up to Date?
As time passes by and your life changes, your incapacity plan may become stale and outdated. It is important for you to review your documents and agents every few years or after a major life event (such as a divorce or a death of an agent) to ensure that your plan will work the way you intend it to work if it is ever needed.
Please contact our office using the phone number or Contact Us button below to discuss your questions about incapacity planning and to schedule your plan review.
