Healthcare Advanced Directives

By Leu, Peirce & Olson, PLLC

Healthcare Advance Directives are a vital part of your estate plan. Each of the advance directives plays a distinct role in ensuring that when the time comes, your healthcare wishes are followed.

A Medical Power of Attorney, HIPAA Release and Authorization, and Directive to physicians (also known as a Living Will) work in concert to provide trusted individuals with the tools they will need to manage your healthcare and make health-related decisions for you, should you become unable to do so for yourself.

Medical Power of Attorney
A Medical Power of Attorney enables you to name a trusted individual as your agent to make healthcare decisions for you in accordance with your wishes. As long as you are awake and can understand and answer a medical professional, you always make your own healthcare decisions. If you are not capable of making or communicating your decisions, your agent under the Medical Power of Attorney has authority to act for you. Your agent is obligated to follow your wishes when making healthcare decisions for you, to the extent you have made those wishes known. If there is no evidence of your wishes, your agent should make decisions based on your best interests; however, treatment may not be given, or withheld, if you object. This is true whether you are competent or not. Although you are not required to designate alternate agents, it is advisable that you name at least one additional person, if not more, whom you trust to act on your behalf and in accordance with your beliefs and desires. For many reasons, your agent may not be able to act when a decision needs to be made. Therefore, having alternate agents named can be very important.

HIPAA Release and Authorization
HIPAA (Health Insurance Portability and Accountability Act of 1996) is a federal law that requires doctors, nurses, hospitals, nursing homes, and other healthcare providers to protect the privacy of patient health information. A HIPAA Release and Authorization document names individuals you trust to have access to this protected health information. When you execute a HIPAA Release and Authorization, you are giving your healthcare providers permission to discuss your health information with those trusted individuals. This can be an important tool for those who are assisting you with your healthcare and want to stay informed of your status. Without such access, your agents may not have all the information they need when it is time to act under the Medical Power of Attorney. This document also allows you to keep others who are close to you informed of your medical condition, even if they cannot make decisions.

Directive to Physicians and Family or Surrogates (Living Will)
A Directive to Physicians and Family or Surrogates, commonly known as a Living Will, provides information and instructions to your agent under the Medical Power of Attorney regarding your desires to administer, withhold, or withdraw life-sustaining treatment should you be diagnosed with a terminal or irreversible condition.

Although commonly confused, a Living Will is different from a Do Not Resuscitate Order (“DNR”). A DNR should be signed only after receiving an explanation from a physician, who also signs a document to confirm you were provided the information necessary to make a sound decision. While a Living Will addresses life-sustaining treatment before your heart has stopped beating, a DNR instructs medical personnel not to perform emergency resuscitation after your heart has stopped beating. Importantly, medical personnel must see a properly executed DNR prior to beginning resuscitation procedures, as they cannot stop resuscitation procedures once they have begun.

An experienced attorney who practices in this area of the law understands each of these documents and how to tailor them to your unique circumstances, wishes, and family dynamics. Advice on Healthcare Advance Directives, as well as other interrelated legal issues should be provided by an attorney who works in this area on a daily basis. There is a reason that professionals like attorneys and doctors are licensed-they are providing important services and are required to meet strict standards. If you need help with your estate plan or have questions about Healthcare Advance Directives, please contact our office for a consultation.