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Tuesday, February 07, 2012 |
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Practice Home | Wills | Trusts | Powers of Attorney | Health Care Directives
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Health Care Directives |
FREQUENTLY ASKED QUESTIONS
- What are health care directives?
Health care directives are written statements that appoint others to act for you
and inform others about your preferences for medical treatment and health care if
you’re not able to make decisions for yourself when the time comes. Because these
statements are made in advance of your becoming unable to make decisions on your
own, they are often called "health care advance directives" or "advance directives."
- What kind of health care directives are there?
There are two kinds of health care directives that are in common use today. The
first is a living will.
The second is a durable power of attorney for health care,
which is called a "health care proxy" in Massachusetts.
- Am I required to have these health care directives?
No. You are not required to have any of these health care directives. But, one or
more of them is a good way to insure that your wishes are known if you’re ever in
that situation. If your wishes are known, then your medical service providers will
know what procedures to follow and your family and friends will be spared the agony
of second-guessing what you would have wanted.
Also note that in Massachusetts, a child is considered to be emancipated when he/she
turns 18 years old. At this time, the parents’ access to their child’s medical records
and their participation in their child’s health care protocol become severely limited.
I recommend that all parents of college-aged “children” discuss the possibility
of having each child sign a health care proxy designating his/her parents as his/her
health care agent(s), so that the parents can be given access to medical records
and can more readily participate in their child’s medical decisions, in the event
of their child’s incapacity. It never hurts to have the document prepared and ready
to use in such a circumstance, with the hope that it will merely gather dust sitting
in a drawer, unused.
- What is a living will?
A living will is a legal document that states your preferences for medical treatment
if you are terminally ill or permanently unconscious and unable to actively take
part in making decisions for your own life. In that case, the living will states
that you want to be allowed to die and not be kept alive through life support systems.
To date, living wills are not authorized by law in Massachusetts, but it can still provide valuable evidence of an individual’s intent if he or she cannot speak to
refuse medical treatment. Without a living will, a court could be required to determine
an incompetent terminally ill patient’s wishes regarding the provision or withholding
of life-prolonging treatment.
The term "terminally ill" generally means that you have an incurable or irreversible
medical condition that, without the use of life-support systems, will result in
death within a relatively short period of time. The term "permanently unconscious"
generally means that you are in a permanent coma or a persistent vegetative state,
which is an irreversible condition in which you are not aware of yourself or your
environment and show no response to the environment.
Under a living will, you can state whether you want - or don’t want - certain life-sustaining
procedures administered to you, including artificial respiration, cardiopulmonary
resuscitation, and artificial means of providing nutrition and hydration.
- Can I decide what treatment I want under a living will?
Yes. That decision is entirely up to. But, it’s an important decision,
so most professionals recommend that you discuss the available options beforehand
with your loved ones and your professional advisors. Some people don’t feel comfortable
making a living will, while many others do.
- What is artificial nutrition and hydration?
Artificial nutrition and hydration refers to the use of artificial means to feed
and hydrate a person who is not able to eat and drink on his or her own. It generally
includes giving food and water through an intravenous catheter (commonly called
an "IV") or through a nasogastric tube.
- What is a durable power of attorney for health care?
A "durable power of attorney for health care" is a legal document in which you name
another person as your agent to make health care decisions for you if you are unable
to make them on your own. A durable power of attorney for health care is exactly the same as any other durable power of attorney except that it pertains only to
your health care, not financial matters. You can include instructions about the
types of medical treatments you want - or don’t want. The following are a few examples
of the types of things you can include: your personal goals, values and preferences;
the types of medical treatment you would want - or don’t want; how you want your
agent to make decisions; where you want to receive care; instructions about artificial
nutrition and hydration; mental health treatments; organ donations; funeral arrangements;
and whom you would like to have as a guardian or conservator of your person if one
is to be appointed for you (see below). You can be as general or as specific as
you like, because it is your directive to your designated agent.
The durable power of attorney for health care is also important in light of the
federal Health Insurance Portability and Accountability Act (HIPAA), which ensures
the privacy of protected health information held by HIPAA covered entities (like
physicians and hospitals). The HIPAA privacy regulations provide that a HIPAA covered
entity must treat a personal representative, such as the holder of a health care
proxy, as the individual for purposes of the HIPAA privacy rules. Thus, the holder
of the health care proxy, in most circumstances, will have the same access to protected
health information as the individual who signed the proxy and is the subject of
that protected health information.
- Who should be my agent under my health care directive?
This is a very important question. Whomever you decide to name as your agent under
your durable power of attorney for health care, it should be someone you know very
well. It should also be someone you respect and someone whose judgment you value. Moreover, the person you name as your agent should be somewhat knowledgeable about
medical issues, although it’s not necessary that this person have any medical training.
This person should also have a good understanding of who you are and what your values
and feelings are. After all, this person could be stepping into your shoes to make
the very difficult medical decisions that you would have to make for yourself if
you were able to do so.
You can appoint as many agents as you would like, although most professionals recommend
that you name only one person to serve as your health care agent. However, if you
choose to appoint more than one agent, then you should specify whether each agent
can act separately or whether they all must act collectively. There are advantages
and disadvantages to both forms of appointment. Requiring your agents to act collectively
can safeguard the soundness of their decisions, but it may be very difficult for
all of them to agree on every decision. If any one of them can make decisions for
you, that may be much easier to get things done, but it may also cause serious disagreements
among them if they are not told in advance. Another option is to appoint only one
agent, with another named as an alternate in case the first named agent is unable
to act for you.
Many individuals have two or more children and they don’t want to name just one
child as their health care agent because it may slight the others. If only one of
your children lives close to you or if only one of your children is able to act
for you, then name just that one as your health care agent, with one or more of
the others as alternates. If that is not the case, then you should consider naming
all of them as your health care agents in order to avoid slighting any one of them.
Of course, these are issues that everyone must struggle with when they prepare a
health care advance directive. But, most people agree that it’s better to have the
struggle before you actually need someone to make these health care decisions for
you.
- What is a pre-designation of conservator?
A pre-designation of conservator is simply a statement indicating whom you
would want to serve as the guardian or conservator of your person in the event that
a guardian or conservator is to be appointed for you. If you have a durable power
of attorney for both financial and health care purposes, it is less likely that
a court will appoint a guardian or conservator for you. Still, there is always the
possibility that someone may petition the courts to have a guardian or conservator
appointed for you. In that case, a pre-designation of conservator will tell the
court your preferences if you are not able to speak for yourself. Your nomination
will take precedence over a relative’s or anyone’s request for guardianship after
your incapacity (absent good cause or disqualification). Thus, the durable power
of attorney can be a useful tool for an individual fearing intervention by hostile
family members in his or her personal arrangements should incapacitation occur.
- Who should I pre-designate as my conservator?
This decision is just as important as selecting someone to act as your agent under
a durable power of attorney for health care. In fact, a guardian or conservator
will be entrusted with pretty much the same powers and authority that your agent
was given. There are differences, however. For example, an agent under a durable
power of attorney for health care is concerned only with medical decisions, whereas
a guardian or conservator is concerned with all of your personal affairs. The person
or persons you pre-designate as your guardian or conservator for future incapacity
may be the same person or persons you name as your agent under a durable power of
attorney for health care and a durable power of attorney for financial matters.
In fact, many people name the same people to serve as successor trustees of their
living trusts and the administrators of their estates. If you have faith and trust
in someone and you believe they will act in your best interest, then they are the
logical persons to appoint in all of those very important positions. In many cases,
those same people will also be the beneficiaries under your will or living trust.
- If I want to donate my organs, what should I do?
You may put a statement to that effect in your durable power of attorney
for health care. Massachusetts, like many other states, has a statewide organ donor
system in place which allows you to indicate your wishes on your driver’s license
or State ID. You should also notify your spouse, family, friends and personal physician
of your intentions regarding organ donations.
- Where should I store my health care directives?
You should inform your family members, your attorney, your personal
physician, and each person you have designated as either your health care agent
or your guardian or conservator for future incapacity. In fact, it is advisable
that you discuss these important decisions with these people before you even sign
the documents.
You should keep the originals in a safe place, particularly one that is free of
any potential water or fire damage. It is also a good idea to give copies of these
documents to the people who are most likely to need this information when the time
comes, particularly your attorney and your personal physician. In fact, you should
give a copy to your physician so that it can be placed in your medical file.
- Will my health care directives be valid in other states?
Yes. Health care directives are valid in all 50 states as long as they
are valid in the state in which they are executed. However, if you move permanently
to another state, it’s a good idea to re-do your health care advance directives
so that they fully comply with that state’s requirements.
- Will doctors/hospitals honor my health care directives?
The laws of most states require that medical service providers honor
your wishes regarding medical care and treatment. However, conflicts sometimes occur
when there is a lack of communication between medical service providers and family
members. This is another reason why you should communicate your wishes to your family
members, your attorney and your personal physician in addition to stating your wishes
in the form of a health care directive. In most states, also, your health care agent
has the authority to seek medical service providers who will comply with your wishes.
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How long will my health care directives last?
Your health care advance directives will last until you change them or terminate
them. You may change your health care directives at any time and from time to time
by simply signing new health care directives. It is always a good idea to destroy
your old health care directives so that they aren’t confused with your new ones. You may also terminate your health care directives at any time simply by destroying
the original and all copies of your health care directives.
The above questions and answers are provided for informational purposes only, and
do not constitute legal advice. Individual circumstances differ significantly, and
I can give my legal opinion on a matter only after consulting with you and considering
the particulars of your situation.
Please contact me at you convenience if you wish
to discuss your specific estate plan.
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