As we go through our daily lives, most of us don’t give a second thought to what would happen if we were not able to take care of our own affairs. What would happen to us however, if we lost the ability to handle these daily affairs or make decisions about our medical treatment? Who would be responsible for watching over us financially and physically? Without the appropriate legal documents, those are very muddy waters that often add to the trauma family members face when a loved one is incapacitated. The remedy is simple enough however; the law allows for a person to express their concerns about aspects of their personal daily affairs and their health care with a series of end of life documents otherwise known as Advanced Directive Documents.
According to the last U.S. Census, 20% of the population will become disabled or incapacitated at some point in their lives. We typically think of the elderly when we consider incapacitation; however, that is not always the case. Consider the painful situation of a young person left in a coma due to an accident. Their family is devastated by the accident and without the proper legal documents, there is no clear path to follow with regards to the incapacitated person’s wishes or desires. Proper planning ensures that the decisions regarding your healthcare reflect your wishes and values. .
There are three documents that act together to provide an individual with the peace of mind that should they become incapacitated, their wishes regarding healthcare will be followed. These documents are referred to as a Living Will,
Designation of Health Care Surrogate and a HIPAA Release.
In a Living Will, a person expresses what he or she would like done regarding end of life care. In a situation where the attending physician and another consulting physician have determined that there is no probability of recovery from a medical condition, the Living Will directs that life prolonging treatment be withheld. The person can indicate which of the three situations where life-prolonging treatment can be withheld: persistent vegetative state, terminal condition or end-stage condition. By having a valid Living Will, you have your wishes expressed so that your loved ones do not have make an incredibly difficult decision in a time of tragedy. It is a true gift from the heart that can ease the emotional turmoil of loved ones and provide a measure of peace. This document is not to be confused with a Last Will and Testament.
Designation of Health Care Surrogate
What if the incapacitated person does not have a qualifying condition to trigger the Living Will? How are health care decisions made on an individual’s behalf? The answer is through the designation of a health care surrogate. A health care surrogate is a person or persons who are chosen by the principal to make health care decisions for the principal during periods of incapacity. The Health Care Surrogate has the tremendous responsibility of making decisions regarding the incapacitated person’s medical treatment and overall well being. Typically a Health Care Surrogate is nominated and an alternate is also designated in case the first nominee is unable or unwilling to take on the role. The document can also outline what your wishes are for overall care and thus, your Health Care Surrogate has a roadmap to follow. Of course, you want to be sure to give this important task of overseeing your care to someone who already has your best interest at heart as a practical matter. As a matter of practical consideration, our office provides a copy of the Designation of Health Care Surrogate to your doctor so that your wishes are known by your doctor and the appropriate people can be notified in the event of your incapacity.
The last document in the advance directives trio is the HIPAA Release that allows the individuals you have named as surrogates or alternates to have your medical records released to them. This allows the medical providers to remain in compliance with the federal HIPAA regulations governing your privacy.