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2. Documentation. The second step is documenting your desires regarding your health care. In particular, you should consider signing the following health care documents (also known as Advance Directives):
You may wonder whether you should hire an attorney to prepare these documents for you. We would answer that with a resounding YES. With the internet, more and more information is readily available. That can be good and bad. Sometimes the availability of information lures you into a false feeling of simplicity. However, reality is often complex. This is the case with your Advance Directives. In order to be legally binding they must comply with state law. Unfortunately each state law is different. Each state has different signature requirements. Some states combine one or more of these documents. States define terms differently. Furthermore, some statutory forms fail to recognize all of your constitutional rights to refuse medical treatment. Signing a pre-printed form may not accomplish your desires. In order to provide the best protection you should consult with an estate planning attorney to assist you in the preparation of these documents. This provides you with the greatest assurance that you personal wishes will be carried out. A Living Will contains your directions regarding medical treatment. Normally it sets forth the circumstances under which you would not want life-prolonging or life-sustaining medical treatments. Life-prolonging Procedures While the definitions vary from state to state, “life-prolonging” procedures were historically those given to you when death was imminent and the procedures would only artificially prolong the dying process. For example, if you are in the final stages of cancer you might not want mechanical resuscitation of your heart if it stops beating. Life-sustaining Procedures On the other hand, “life-sustaining” procedures were historically those procedures that could artificially sustain your life, indefinitely. Life sustaining procedures normally involved the provision of nutrition and hydration (food and water) through artificial methods (tube feedings). Use of Life-prolonging and Life-sustaining procedures There are four main conditions where you should express your desires regarding the withholding or withdrawal of life-prolonging and life-sustaining procedures:
By definition a terminal condition means that you are going to die within a short period of time, usually less than six months. While it is important to express your desires regarding the withholding or withdrawal of both life-prolonging and life-sustaining procedures, the provision of life-sustaining procedures is usually of little consequence since your will die quickly from the terminal condition itself. However, if you are in an irreversible coma or persistent vegetative state, the provision of life-sustaining procedures can keep you alive, indefinitely. In an irreversible coma, you appear to be asleep. In a persistent vegetative state (PVS), you typically appear to be awake. Often your eyes are open, your pupils respond to light changes and you may appear to follow movement or respond to stimuli. However, in either condition, you normally have no upper brain functions. These functions include, thought, emotion, memory and intentional movement. You still have the lower brain functions controlling your breathing, circulation and digestion. Therefore, it is extremely important that you express your desires regarding the provision of life-sustaining procedures. Finally, you may suffer from persistent profound dementia. An example would be the final stages of Alzheimer’s disease. In that circumstance you might not be able to feed yourself. Again, it is extremely important that you express your desires regarding the provision of life-sustaining procedures. B. Health Care Power of Attorney In addition to a Living Will, you should also sign a Health Care Power of Attorney, authorizing a family member or close friend to make medical decisions for you in the event of your incapacity. Almost all states allow you, in advance, to designate someone to make health care decisions for you. This person is commonly referred to as an “Agent”, “Proxy”, “Representative” or “Surrogate.” Generally, your Agent has the authority to make non life-threatening medical decisions for you. In order for your Agent to authorize the withdrawal or withholding of life-prolonging and life-sustaining procedures, many states require you to provide specific authorization in the Health Care Power of Attorney. It is generally recommended that one person serve as your health care Agent. This avoids the possibility of disagreements among multiple agents. It also allows the doctors and other health care providers to look to one person for final decision-making authority. In addition to naming your initial Agent, you should also name several “successor” agents and in the order in which each should serve. This provides safety to you in the event the initial and one or more successor agents are unable or unwilling to serve. The selection of your initial and successor agents is an important one. You should choose those individuals that you trust and feel confident will carry out your desires. Your Agent should have the ability to make tough decisions, even if those decisions are against the wishes of your other loved ones. Living Will vs. Health Care Power of Attorney There is some debate over whether you should have both a Living Will and a Health Care Power of Attorney. Critics to the Living Will state the following disadvantages:
However, properly written, a Living Will can address these issues. Furthermore, critics fail to recognize the two main benefits of the Living Will. First, a Living Will provides clear and convincing evidence of your desires in the event of a family dispute. Second, and perhaps more important, it relieves your family of solely making life-terminating decisions. Although these decisions are never easy for a loved one to make, there is a psychological difference between making a decision (without any prior guidance from you) and implementing a decision (based upon your expressed wishes). Without guidance from you, a loved one might agonize for many years over his or her decision. The third document you should sign is a HIPAA Authorization. This document allows your health care agent and other family members to legally access your medical records and other health care information. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) is a federal law designed to protect your personal health-care information. Although the law was passed in 1996, health care providers were given until April 14, 2003 to comply with its regulations. The overriding rule of HIPAA is that a health care provider must protect your health-care information by only disclosing the minimum necessary. Under HIPAA “health care provider” is very broad and includes a physician, dentist, nurse, pharmacist and other health care provider. HIPAA imposes severe penalties for a health care provider if it violates this disclosure law. As a general rule, a health care provider must have a signed HIPAA authorization from you prior to its release of your health-care information. A written authorization must include:
Finally, the Authorization must be written in plain language! As a result of this law, if you are in an accident, many health care providers refuse to discuss you medical condition with your loved ones. In fact some hospitals might even refuse to tell you family members if you have been admitted for treatment. This could place a tremendous burden on your family. Fortunately HIPAA also allows the authorization to be signed by your Personal Representative. A Personal Representative is a defined term under HIPAA. A Personal Representative is the individual who has authority, under local law, to act for you in making health care decisions. Thus, who is your Personal Representative is determined by state law. As discussed under the Education Process, many state have enacted family consent statutes that set forth those individuals authorized to make health care decisions for you if you have not appointed a Health Care Agent. Those individuals should be considered Personal Representatives under HIPAA. If you have appointed a Health Care Agent, then he or she should also be considered a Personal Representative under HIPAA. In addition, through your Health Care Power of Attorney, it is also possible to name multiple Personal Representatives who have immediate authority to sign HIPAA Authorizations and consequently obtain you protected health-care information. It is recommended that through your Health Care Power of Attorney you appoint you loved ones as Personal Representatives for purposes of HIPAA disclosure. In fact, you should appoint all of those family members that you desire to have access to your medical records and condition. By doing this, each family member should have access to your records and condition in the event of an emergency. There is one final issue with regard to HIPAA. Some states statutes provide that the authority of your Health Care Agent only becomes effective when you are incapable of consenting to your own health care (as generally determined by your attending physician). In this circumstance your Agent and doctor can be placed in an unusual position. Your Agent needs to know and get the opinion from your physician if you are incapable of consenting to your own health care. However, your physician is not authorized to talk to your Agent until you are incapable of consenting. Some fear that a physician might be unwilling to release information to the Agent regarding your mental status. There is a solution to this problem. The appointment of your Personal Representatives should be effective immediately, even if the authority of your Agent to make health care decisions on your behalf only becomes effective if you are incapable of consenting to your own health care. D. Organ Donation Authorization Finally, you should sign an Organ Donation Authorization if that is important to you. In our experience, organ donation is a highly personal and often emotional issue. Since family members will often disagree, it is important to make your desires known, especially if you desire to be a donor. In the past, the most effective way to alert health care providers that you were an organ donor was to sign the back of your driver’s license or carry an organ donation card. Now, with My Personal Wishes, you can place your Organ Donation Authorization with your other health care documents. In the event of a medical emergency this authorization will be immediately accessible. There are many common myths and misconceptions pertaining to organ donation:
If you desire to be a donor, you may express your desires for one of the following:
Finally, please be aware that even if you have a signed organ donor authorization, some states still require the consent of your family. Therefore, it is imperative that you discuss your desires with them. * See Advance Health Care Directives, A Handbook for Professionals, by Carol Krohm, M.D. and Scott Summers, American Bar Association, 2002. |
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