HEALTHCARE POWERS OF ATTORNEY AND LIVING WILLS

All states have laws that authorize you to create a special Power of Attorney in which you designate an agent to make health care decisions for you if you are unable to do so yourself. These Healthcare Powers of Attorney can also be used to provide instructions to your agent concerning the type of care you do or do not want to receive if disabled, seriously ill, or injured.

It is important to get professional advice when preparing a Healthcare Power of Attorney because each state has its own requirements for how the document is to be signed, how many agents may be used at any given time, and restrictions on the types of medical decisions that may or may not be made by an agent. Also, because the person you appoint as your healthcare agent could literally have life and death decision-making authority over you, selection of an agent should be done with the utmost care.

The person you select for your health care agent should be someone who not only knows you well, but also understands your views about continuing health care in circumstances where you are terminally ill or suffering from a permanent loss of consciousness. Remember, these are decisions of the heart and don’t necessarily require the same financial skills you might want to see in a trustee. In fact, the person who is the best with a dollar may be the very last person you would want making these life and death decisions for you.

Your spouse, other family members, or close friends are usually good candidates to be the health care agent. But whomever you chose, it is important that you thoroughly discuss with your agent your desires concerning whether you should receive or refuse healthcare services under various situations.

Your estate planning attorney should be able to provide you with a list of questions that address these issues to go over with your intended healthcare agent.

In addition to statutes authorizing you to appoint a healthcare agent, most states have statutes that authorize you to leave instructions concerning the specific types of treatments you do or do not want to receive. These instructions are generically known as “Living Wills,” and in some states known by their more technical legal definition, “Declarations To Physicians.”

Living Wills, in essence, are intended to provide you with a way to express in advance your desires concerning your health care treatment. They are mainly used by those who desire to authorize the withdrawal of life sustaining care if their treating physician’s medical diagnosis is that continuing healthcare is simply prolonging their life without hope of meaningful recovery. Living Wills can also be used equally well to provide instructions about the types of medical treatment the patient does not want withheld or withdrawn.

Ordinarily, Living Wills require the agreement of two physicians that the conditions you have set to withdraw care have occurred. For example, before they could “pull the plug”, two physicians would have to agree that you are suffering from a terminal condition or that you are in a “persistent vegetative state.”

Recently, there has been a good deal of concern that health professionals frequently do not follow the directives contained in Living Wills because either the healthcare professionals did not know the patient had a Living Will or because the patient’s instructions were ignored under a “doctor knows best” philosophy. Also, in most states the care instructions provided in a Healthcare Power of Attorney override the instructions left in a Living Will if the two conflict with each other.

For these reasons, many estate planners recommend that the primary healthcare directive be the appointment of a specific healthcare agent in a Healthcare Power of Attorney. A handpicked agent serving as your healthcare advocate could make the difference between whether your healthcare instructions will be followed or not.

On the other hand, some estate planners argue that also having a Living Will in place can provide needed instructions if your healthcare agent, for any reason, is unable to serve. This is usually not a problem because of your ability to appoint successor healthcare agents if the first one named does not serve. Ultimately, the decision whether to have one or both documents is an important issue to discuss with your estate planning attorney.

Many of our clients spend portions of the year in different states. If you live part-time in another state you may wish to have your healthcare directives prepared in each of your states of residence. Health care directives are mostly state specific. If you desire to have your wishes carried out no matter where you are if you become ill or injured, it is advisable to have a healthcare directive that complies with the law of all states where you reside a significant portion of the year.

Also, it is important to let others know that you have healthcare directives. Once prepared and signed, you should give copies of your healthcare directives to your chosen agents as well as your family physician. There are also professional services, such as Docubank or U.S. Living Will Registry, that offer twenty-four hour worldwide faxing of your healthcare directives with only a phone call. Your estate planning attorney can help arrange for these services if desired.

You should also ask your estate planning attorney if there are any other unusual provisions in your state’s laws of which you should be made aware. For example, in some states you may be able to obtain a “do not resuscitate” bracelet that instructs paramedics and other healthcare professionals that you do not want to receive resuscitation services if you cannot communicate that desire yourself.

Congress enacted the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to protect your healthcare information. The primary objective is to ensure the electronic transmission of health care information between insurance companies remains private. A consequence of these strict privacy rules is that your healthcare provider may be prevented from sharing healthcare information with your loved ones.

HIPAA imposes significant penalties on health care providers who release your information without proper authorization. To avoid a situation where your family is unable to obtain necessary healthcare information when an emergency arises, it is imperative that you have a Healthcare Power of Attorney.