You probably take for granted the fact that you have the basic civil rights to make personal and health care decisions for yourself: where you are going to living, with whom to associate, what kind of health care you will receive, and what courses of medical treatment you will endure. What happens when you are no longer able to have direct control of these decisions due to mental incapacity? How do you maintain a degree of control over your wishes? The following documents can help ensure that your health care wishes and preferences are carried out by trusted individuals in the event of your incapacity.
Advance Health Care Directive
Sometimes also referred to as a “health care power of attorney,” an Advance Health Care Directive (“AHCD”) serves two main purposes. First, an AHCD allows you to designate an agent to make health care decisions for you in the event of your incapacity. It is prudent to name at least two or three alternate health care agents in the event that the first person you name is for any reason unable or unwilling to serve in that role.
Second, the AHCD allows you to generally express your wishes as to how your agent should make decisions on your behalf. This expression of your health care wishes is sometimes referred to as a “living will.” Most AHCD’s provide general guidelines such as whether or not to withhold artificial life support under specified conditions, whether or not to provide treatment for pain or discomfort even if the treatment hastens your death, and whether or not you want to be an organ donor.
The AHCD specifically gives direction to your agent to make decisions on your behalf in accordance not only with the wishes that you express in the AHCD, but also in accordance with the wishes you might express in a separate document or verbally.
With regard to the disposition of your remains, it is important for the AHCD to specifically authorize your agent to make such post-death decisions. Without the express authorization, health care providers might consider the agent’s authority to expire upon your death.
A good AHCD will also list the name and contact information of your primary physician in case your medical records are needed during an emergency.
HIPAA, the “Health Insurance Portability and Accountability Act,” protects your medial privacy. The rule provides strict provisions against health care providers from improperly sharing your private health information. While the intent of this law is noble, it can become a problem in the estate planning context. How will your health care agent be able to make an informed decision on your behalf without full access to your health information? By signing a HIPAA Waiver while you still have mental capacity, you can specifically authorize your health care agent and other interested parties access to your otherwise protected health information. While a HIPAA Waiver is a simple document, it can be invaluable during a medical emergency. While some AHCD’s might include HIPAA language, a separate, stand-alone HIPAA Waiver that covers all of your health information maintained by all health care providers is the best approach to this issue.
A POLST (“Physician Order for Life Sustaining Treatment”) form is an additional document that supplements your AHCD. It is a standardized physician order that is recognized throughout the health care system that enables you to choose which specific medical treatments you want to receive and which specific medical treatments you do not want to receive. Examples include whether or not to sign a “Do Not Resuscitate Order” (“DNR”), whether or not to receive feeding tubes, and generally what degree of treatment you prefer from “full treatment,” to “selective treatment,” to “comfort-focused treatment.”
A POLST must be signed by a physician, nurse practitioner, or physician assistant in order to be effective.
While almost everybody should sign an AHCD and a HIPAA Waiver, POLST forms are usually most appropriate for individuals who have an advanced chronic illness or frailty and who are near the end of life. While an AHCD is about treatment in the future, a POLST form is usually about treatment in the present.
Once you have taken the time to execute an AHCD, a HIPAA Waiver, and possibly a POLST form, the question is how do you ensure that in case of emergency your health care providers will be able to access this information? While it is prudent to give a copy of your documents to your doctor and possibly the hospital, what happens if you are traveling out of the area?
The California Secretary of State has a registry system for your AHCD. By filling out an application and paying a $10 fee, the Secretary of State will keep a copy of your AHCD and issue you a plastic card to keep in your wallet stating that you have registered your AHCD with the Secretary of State.
California is also experimenting with an eRegistry for POLST forms.
Alternatively, there are many private companies, such as LegalVault, Docubank, and Legal Directives, that store all of your health information – your AHCD, your HIPAA Waiver, your POLST form, and other related health information – in the cloud. These companies also issue plastic cards to keep in your wallet that will grant access to this information 24/7. It is prudent to keep these cards near your health insurance card or I.D.
Additionally, many smartphones have applications that allow you to store emergency contact information. For example, Apple’s iPhone has a “Medical ID” feature that allows you to store emergency contact information. This information is accessible without the need to input your passcode in the event that you are unconscious and emergency personnel find your phone. It is definitely worth the short amount of time to take advantage of this feature.
KRASA LAW, Inc. is located at 704-D Forest Avenue, Pacific Grove, California 93950 and Kyle may be reached at 831-920-0205.
Disclaimer: This article is for general information only. Reading this article does not establish an attorney/client relationship. Before acting on any of the information presented in this article, you should consult a competent attorney who is licensed to practice law in your community.