February 19, 2019

How to Help Ensure That Health Care Wishes Do Come True

Please read important disclosures HERE

For many years, I had meaningful conversations with clients about the transfer of wealth at their death. In retrospect, my conversations with clients for dealing with the aging process, health care decisions, and end of life care were never totally introspective or complete. Discussions about these matters can be difficult and emotional. However, as we age, having a health care team in place and your wishes known takes on greater importance.

Ensure Healthcare Wishes True

Besides our own health care, many of us may also participate in health care decisions for aging parents and adult children. Rights of access to health information can be hard to understand and different states may have different regulations about what information will be shared with family members.

It is every parent’s worst nightmare to receive a call that their adult child was involved in a car accident. Such situations may be unavoidable but the added feelings of helplessness and frustration a parent feels when doctors will not provide information about a child’s condition or care could be prevented if proper health care forms are completed ahead of time.

Each of us has a basic right to control decisions related to our own health and/or end-of-life care. Being your own advocate, understanding your rights to grant or receive access to medical information for yourself and loved ones, and knowing the proper documentation to have in order is a good place to start to alleviate some of the unavoidable stresses of a medical situation.

Every state has different laws and requirements for properly executing end of life and medical care documents. For those who reside or spend time in multiple states, it is important to understand and sign health care directives that comply with each state’s laws.

Advance Health Care Directive (AHCD)

A California Advance Health Care Directive is a statutory form that makes your health care wishes known in the event you are either unable to speak for yourself or prefer that someone else make health care decisions for you. In an AHCD, you name an agent to make decisions about your health care and specify certain instructions for different kinds of medical issues. Generally, the agent can make such decisions when your primary doctor determines that you lack the capacity to understand the nature and consequences of your health care decisions or don’t have the ability to communicate such decisions.

When selecting a health care agent, you should consider choosing a person whom you trust, such as a spouse, partner, child, or close friend. The person you name as agent should know your personal values and your beliefs on health issues and end-of-life care. You should also name at least one alternate agent in the event your first choice is unable or unwilling to act on your behalf.

Your original completed form should be kept in a place where your family can find it if needed. You should also give a copy to your primary care physician. If you spend time in more than one state, you should also complete advance directives in each state as each state may have different forms and rules. You always have the option to revoke the form and execute a new one and it is generally a good idea to do so every few years. A completed directive with a relatively current date is generally a good indication that the instructions in the directive are your current wishes.

HIPAA Form

HIPAA is an acronym for the federal Health Insurance Portability and Accountability Act that was passed by Congress in 1996. The regulations under the act require health care providers and organizations to develop and follow procedures that ensure the confidentiality and security of protected health information when it is transferred, received, handled, or shared. Sometimes the HIPAA provisions are included in the AHCD and sometimes in a separate stand-alone form.

It is essential that young adults transitioning from their parent’s care to independence execute an AHCD and HIPAA directive. Additionally, those individuals going to college will want to also complete any health authorization forms their college may require. It’s critical to keep the forms readily available so that health care providers are authorized to disclose and discuss health care information to the appropriate person. Aging parents who want their children involved in their health care should have similar documents in place.

Durable Power of Attorney for Health Care and Natural Death Act Declaration

In 2000, California legislation replaced the Durable Power of Attorney for Health Care and the Natural Death Act Declaration forms with the AHCD. If you have a Durable Power of Attorney for Health Care form signed before July 1, 2000, the document is still valid.

Living Will

A living will is a document that falls in the category of an AHCD but may include health care directions that are not included in the statutory AHCD form. Some people use the term living will interchangeably with an AHCD. Five Wishes is an example of a living will document that also allows a person to address spiritual and emotional needs in addition to medical concerns. While in California, Five Wishes meets the legal requirements of an AHCD, and a Five Wishes document executed after an AHCD supersedes the AHCD. However, the validity of the Five Wishes document in another state should be verified.

POLST Form

POLST stands for Physicians Orders for Life-Sustaining Treatment and the form was adopted in California in 2009. The form must be signed by you or your agent and your physician and as such represents an agreement reached between you and your doctor. This form may indicate the types of life-sustaining treatment you either want or do not want if you are seriously ill. Common issues addressed in a POLST form are your preferences for cardiopulmonary resuscitation (CPR) and feeding tubes. This document is an adjunct to and not a replacement for an AHCD. Family members may wish to meet with an elderly person’s doctor during a visit and review the choices in the POLST.

Do-Not-Resuscitate (DNR) Order

A DNR is a legal order to withhold CPR or advanced cardiac life support if either your heart stops or you stop breathing. A DNR does not include instructions about other types of end of life treatment, such as pain medicine, nutrition, or hydration. While a doctor and hospital should accept a DNR, it is also good practice to discuss your wishes with your doctor to make certain you are on the same page when it comes to life-ending procedures.

What Steps Should Be Taken to Make Health Care Wishes Known

For yourself:

  1. Clarify your values, beliefs, and particular wishes that you want others to follow if they need to make decisions for you.
  2. Discuss your values and wishes with your doctors, health care agents, and family members ahead of time to make certain that they know what you want and are willing to support your wishes.
  3. The circumstances that you may face in the future and treatment plans change over time. Be clear and concise in your directions but try not to anticipate every possible situation. Complete the paperwork. The consequences of being unprepared can be very stressful for everyone involved and in a worst-case scenario, may involve a petition to the court by a loved one to obtain legal powers to make decisions on your behalf.
  4. Review your choice of health care agent and your health care decisions every few years and update your health care documents.

For others for whom you care:

  1. Make certain adult children have an up-to-date AHCD and HIPAA directive in place and that you have a readily available copy.
  2. Ask care facilities, doctors, and university medical centers what additional forms may be needed so that you can be kept informed of health care issues and be a part of the patient’s health care team.

The best time to make decisions regarding health care is while you are able to consider your wishes carefully and discuss them clearly and openly with family, caregivers, and doctors. Having clear documentation in place can help ensure that health care wishes for you and your loved ones do come true.

Disclosures:

This article provides a general overview of a particular estate planning topic and is not intended to be an exhaustive summary of every practical element of that topic. Many important elements of each subject are not discussed herein. This article is for informational purposes only and is not intended to be used as a general guide to estate planning or as a source of any specific recommendations, and makes no implied or express recommendations concerning the manner in which any individual’s account should or would be handled, as appropriate estate planning strategies depend upon the individual’s specific objectives and circumstances. It is the responsibility of any person or persons in possession of this material to inform himself or herself of and to seek appropriate advice regarding any investment, financial planning, or estate planning decisions, legal requirements, and taxation regulations which might be relevant to the topic of this article or the subscription, purchase, holding, exchange, redemption or disposal of any investments.

Estate planning law changes frequently and the information presented within may no longer be current. Please do not rely on the information provided herein without first consulting an attorney.

This article does not constitute a solicitation in any jurisdiction in which such a solicitation is unlawful or to any person to whom it is unlawful. Moreover, this article neither constitutes an offer to enter into an investment agreement with the recipient nor an invitation to respond by making an offer to enter into an investment agreement.

Opinions expressed are current opinions as of February 2019 and are subject to change. No part of this material may, without the prior written consent of Bingham, Osborn & Scarborough, LLC, be (i) copied, photocopied or duplicated in any form, by any means, or (ii) distributed to any person that is not an employee, officer, director, or authorized agent of the recipient.

Filed under: Estate Planning

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