Health care decisions are often the most personal and private decisions a person can make. Information about your health can be very sensitive and if revealed to the wrong person, cause embarrassment, job loss and harm to your reputation. The HIPAA law (Health Insurance Portability and Accountability Act of 1996) was created to provide restrictive protection of medical care. A recent article from The Sentinel titled “Elder Care: The power of an informed healthcare agent” explains how this law makes it more important than ever to have a Healthcare Power of Attorney (POA) in place.
If you think you’re too young or healthy to need a health care POA, think again. If a sharp decline in health occurs, your dignity and care may fare far better with a POA than without, for several reasons. For one, if done in advance, you are the one who chooses who your health care advocate will be.
You may not think an estate planning lawyer’s office is the place to go to deal with important health care decisions. However, this is an important part of your estate plan. Planning for incapacity is as much a part of estate planning as is planning for asset distribution postmortem.
What would happen if you were still alive but not able to understand what is happening around you or unable to speak for yourself? Who would you want making critical medical decisions on your part? Your estate plan includes a Health Care Power of Attorney, which authorizes a person of your choice to be your advocate and authorize or refuse medical treatment, based on the wishes you express in this important document.
Giving someone you trust the power to make health care decisions for you has to be done while you still have capacity. Once you are incapacitated by a medical emergency, even if you have some limited ability to express your wishes, you are not legally permitted to sign this document.
A Health Care Power of Attorney is valuable even without a sudden decline in health or a serious diagnosis. Even in routine medical situations, there are benefits to naming a health care agent. Let’s say you go in for a routine colonoscopy, which is a common procedure for anyone over age 50. Several polyps are discovered and someone has to authorize the doctor’s taking them out. If you have a Health Care Power of Attorney and your agent is waiting nearby, they can authorize the removal. If not, and if the doctor has not asked for prior consent to remove the polyps, then you’d have to wait for a post-procedure meeting with the doctor and then undergo the entire procedure all over again.
Ideally, more than one person should be named as your health care agent. If the primary person is not reachable and an emergency occurs, someone else will be able to step up and help as needed.
Your estate planning attorney should also prepare a Living Will to provide guidance on end-of-life medical decisions. This includes whether you want to be resuscitated, how much medical treatment you would want in case of severe and irreversible brain damage and what life-extending procedures you’d want if you are dying from an end-stage medical condition.
Your estate planning attorney will help guide you through these decisions, since they are ultimately yours to make. However, the idea of having them in place before they are needed puts you in charge of what will happen when you can’t speak for yourself. It’s not easy to consider, but better done than left undone.
Reference: The Sentinel (Sep. 23, 2022) “Elder Care: The power of an informed healthcare agent”