WHAT IS AN “ADVANCE DIRECTIVE”?
An Advance Health Care Directive (or Power of Attorney for Health Care) gives your designated agent(s) the legal authority to make health care decisions on your behalf if you cannot make your own wishes known due to incapacity. The Advance Directive also allows you to state your wishes regarding the care you wish to receive, or not receive, under various circumstances, such as if you are in a coma or develop Alzheimer’s disease, among others.
WHEN DOES IT TAKE EFFECT?
An Advance Directive can be made to take effect immediately upon signing, or more commonly, upon your incapacity (a “springing” power). Generally a springing Advance Directive takes effect when you have been declared by a medical doctor to be incapable of managing your health care due to a medical condition.
HOW LONG DOES IT LAST?
The authorities under an Advance Directive have different durations:
The authority to make health care decisions terminates upon your death or when you resume capacity and are able to make your own health care wishes known.
Four powers continue with the agent(s) after your death:
* To authorize an autopsy, if you’ve given them that authority;
* To authorize organ donation, if you’ve given them that authority;
* To claim the body; and
* To make funeral and burial arrangements.
WHAT IS A HIPAA Authorization?
Since the enactment of the federal Health Insurance Portability and Accountability Act (HIPAA), health care providers are restricted from disclosing your confidential medical information to others without your written consent. The HIPAA Authorization expressly gives your consent to disclosure of your medical information to your successor trustee (if you have a living trust) and your designated agent under your Advance Directive for Health Care, among others.
WHAT IS A LIVING WILL?
The primary purpose of a Living Will is to state your wishes regarding whether or not to have life support systems (artificial hydration and nutrition) disconnected in the event you are in the final stages of life with no reasonable medical hope of recovery. If you do not authorize the disconnection of life support, your agent generally may not have it disconnected without a court order.
ARE THERE ANY RISKS?
Yes. The Advance Directive and related documents give someone the legal authority to make health care decisions, including end-of-life decisions, for you if you are incapacitated and cannot make your own wishes known.
It is important that the people you choose as your agents understand your wishes and are willing to carry them out for you, even if those wishes might be contrary to the decisions they might make for you or themselves if acting independently.
Also, since the authority under an Advance Directive preempts the wishes of a surviving spouse, there are instances where a spouse’s wishes are not honored in favor of those of the designated agent when they are in conflict. This sometimes occurs when the agent is the adult child of a former marriage.
As a result, it is important that you select your designated agent(s) carefully and if possible, discuss your wishes with everyone involved so that they understand your desires, and any possible family conflicts which may arise can be resolved before a medical emergency occurs.
Copyright 2009 Dan H. Burcham, used with permission.