Any estate planning attorney will tell you that planning your estate is a process and not a one-time event, and the same holds true when it comes to incapacity planning. Often clients are concerned that their end-of-life wishes won’t be honored when the time comes. And, while your Advance Directive is a key component when it comes to ensuring that your treatment preferences will prevail, it’s not the only step you need to take in this process.
An Advance Directive is the document with which you name a healthcare agent to make medical decisions on your behalf if you’re incapacitated and unable to make your own choices. It also allows you to communicate your end-of-life treatment preferences, in writing, to your doctors. This is where you’ll tell your doctors whether or not you want to be placed on a ventilator, or to receive other life-sustaining measures. Even with a well-drafted Advance Directive in place, though, your job is not finished.
What’s the next step in the process? Talk to your family members and to your doctors, in person, and explaining your end-of-life wishes and preferences. Make sure they know you have an Advance Directive, and make sure they know what’s in it. You’ll want to talk in detail to the person you’ve named as your healthcare agent and make sure that he or she understands your thoughts and feelings about end-of-life care and is prepared to advocate for you.
Taking this extra step can be beneficial in two ways. First, it will let you know whether those responsible for your care have any issues with the terms of your Advance Directive. This, in turn, will allow you to take the actions needed to resolve any problems ahead of time. Second, when you and your doctor have a face-to-face conversation about your wishes, it’s harder for your doctor to ignore those wishes later, when the time comes to implement them.
Remember how, starting a few years ago, you had to sign a “HIPAA” form when you went to the doctor’s office? HIPPA stands for the Health Insurance Portability and Accountability Act of 1996.
One of the things that HIPAA does is strictly enforces the privacy of patients’ medical records. So, if a doctor releases your medical records to the wrong person, the doctor can face harsh penalties.
What does all of this have to do with estate planning? If you have an Advance Medical Directive that does not have HIPAA-friendly language in it, your healthcare agent might not be able to get access to your medical records if you become incapacitated. What’s worse, your healthcare agent might not even be able to get your doctors to talk to him or her about your medical condition. In fact, in order to get access to your doctors or medical records, your healthcare agent might have to go through the courts.
So, without the right HIPAA language, your Advance Medical Directive might not be very helpful. What can you do?
Simple – just have your estate planning attorney take a look at your incapacity planning documents. Your attorney can let you know in a matter of minutes whether your documents contain the appropriate HIPAA language. If they don’t, you can have new, HIPAA-friendly documents drawn up. And you’ll have the peace of mind of knowing that your incapacity plan will work when you need it.
It’s important to have a plan in place so that, in case you are in a coma or otherwise unable to communicate, your doctors will know preferences as to healthcare and medical decisions. The place to do this is not in your Will. Why not? There are two main reasons:
1) Your Will has absolutely no legal effect until you die. So, even if your Will has crystal-clear instructions as to what procedures you want and don’t want, it’s powerless to help you if you’re being kept alive by life support.
2) After you pass away, your Will is filed with the court to begin the probate process. When it’s filed, it becomes a public record, accessible to anyone who’s interested. Many people consider their healthcare preferences a very private matter, and don’t want them subject to public scrutiny.
What’s the appropriate method for communicating your healthcare preferences? An Advance Healthcare Directive. It’s a separate legal document that’s easy to put in place, and it is an essential part of your estate plan.
An Advance Healthcare Directive lets you tell your medical professionals exactly what treatments and procedures you do and don’t want in the event that you’re ill or injured and can’t make decisions for yourself. You can communicate whether or not you want to be kept on life support, what kind of pain relief you want, and whether you want to be tube-fed, among other things.
Your estate planning attorney can explain exactly what’s involved in putting an Advance Healthcare Directive in place. Once the Directive is signed, you’ll want to make sure that those closest to you know where it’s kept. This way, they’ll have quick access to it in case they need it. You may also want to explain your healthcare preferences to your family, to avoid upsetting surprises in the event that the Directive needs to be used.
