Thinking About The Unthinkable In Your Estate Planning

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The current pandemic has caused many of us to confront our own mortality and to think about the “what if” scenarios if we, or someone we love, gets sick. With almost a million Covid deaths worldwide, it’s hard not to be concerned. As difficult as it is to imagine the unimaginable, you need to be prepared for this, and other, illnesses that could leave you incapacitated. 

Make sure you have a current health care proxy in place, along with a signed HIPAA waiver for your health care agent. Here is what you need to know. 

Health Care Proxy

Your health care proxy allows you to appoint an agent to make health care decisions for you if you cannot make them yourself. You will always make these decisions for yourself if you can. However, if you are on a ventilator or suffer a stroke and can’t communicate, you need to name someone to make these decisions for you. This can be a friend or a family member.  

Each state has its own statutory language for a health care proxy and may refer to it by a different name. An advance directive or a power of attorney for health care are other common names for a health care proxy.  

You should discuss your desires for your medical treatment with the person you name as your agent. You can also authorize or restrict specific treatment in the proxy. For instance, you can prohibit blood transfusions, which people sometimes do for religious reasons. Or, you may wish to authorize or limit your agent’s ability to remove you from life support. Most of my clients who have seen loved ones struggle with end of life diseases often embrace the adage, “pull the plug.” However, you may wish to put limits on this authority.  

Many states’ laws include language that grants the person you name a power to remove you from life support under certain circumstances. Such language may be similar to the following: “I declare that I would not want to be kept alive in a state of diminished capacity, dignity and enjoyment by artificial life-support systems such as a respirator, cardiac resuscitation, artificial nutrition or hydration, or other extraordinary measures which would merely prolong my dying if I were terminally ill, or in a persistent vegetative state, or if, in the judgment of my attending physician, the burdens of such interventions would outweigh the potential benefits thereof.” 

If you do not want to be removed from life support, or if you want to include other parameters for removal from life support, you will need to modify this language.  

Kentucky’s statutory form, called a “living will directive,” includes standard language that the documents shall have no effect while the person who signed it is pregnant. Be sure to read the language of the health care proxy to ensure you agree with it and remember you can modify the language if you so choose.  

Five Wishes

Instead of a health care proxy, some people choose to execute a Five Wishes form, a document that was created with assistance from the American Bar Association’s AHA 0.0% Commission on Law and Aging. The Five Wishes form substantially meets most state’s legal requirements for a health care proxy and can be used in lieu of your state’s health care proxy if it meets your state’s statutory requirements.  

Rarely do my clients choose to execute a Five Wishes directive because it is so specific and detailed about end of life care. It addresses your personal, spiritual and emotional needs at end of life in addition to your medical care. While some people do like it, others find it too touchy- feely for them. However, it may be appropriate for you.

HIPAA Waiver

Along with your health care proxy, you should also sign a HIPAA waiver. HIPAA is the more commonly known name of a law (Health Insurance Portability and Accountability Act of 1996) that was created to, among other things, protect your private health care information. The law prevents medical providers from sharing your health care information with people who are not authorized to receive it. In order for your designated family or friends to have access to your health care information, you need to sign a HIPAA waiver authorizing the release of information to them.  

It is important to give your health care agent the ability to access this information if they need to make decisions about your medical care. Some states include a HIPAA waiver as part of their health care proxy, but other states require a separate document. Check with your lawyer as to your state’s requirements.