When people think of estate planning, they often think of a will or trust and the disbursement of their assets upon death. A will and/or a trust are recommended and important but are not generally helpful when you are alive and facing a major health event. If you are facing a major health event, there are several documents you should be certain are in place.
An Advance Health Care Directive allows your health care wishes to be known and considered if for any reason you are not able to speak for yourself. Anyone over the age of 18 years old, of sound mind, and acting of his or her own free will can and should complete an Advance Health Care Directive.
Appoint an Agent and Alternate Agents: You can appoint almost any adult to be your agent. It can be a family member such as a spouse, adult child, or other trusted person. You can also appoint alternate agents in the event your primary agent is not able to act on your behalf. There are restrictions on certain persons who can be appointed – for example, you generally cannot appoint your doctor to serve as your agent.
It is also recommended that you only name one person as your health care agent. In the event there are two or more agents and they disagree, then effectively no one would be able to make a decision on your behalf, which undermines the purpose of the Advance Health Care Directive.
Health Care Decisions by Your Agent: Your agent will have legal authority to speak for you on health care matters. Your agent can accept or refuse medical treatment, have access to your medical records, make decisions about donating your organs, authorize an autopsy, and the final disposal of your body if you should die. You can also limit the powers your agent can make on your behalf, denying them the ability to make decisions on certain procedures or treatments, or limiting which organs they are able to donate and the purposes for which the organs will be used.
It is important to discuss these decisions with your family or loved ones so they understand your values. Your family should know your position on life support or aggressive treatments, your wishes on hospice or long-term care, and how you want to spend the last months of your life.
Duration of Advance Health Care Directive: The Advance Health Care Directive is valid for the duration of your life, unless you revoke it or state a date you want it to expire.
Copies of Advance Health Care Directive: It is important to tell your agent and/or family that you have an Advance Health Care Directive and to let them know where it can be found. Many persons provide their agent with a copy of their Advance Health Care Directive in advance. If you are being admitted to a health care facility, bring a copy of the Advance Health Care Directive with you.
Special Note re Medical Records – HIPAA Release: In light of stringent privacy rights, medical professionals have tightened the ability for agents to obtain medical records. A HIPAA release would allow you to name your agent and alternate agents as an authorized person to receive or discuss your medical records. It is recommended to have a HIPAA release attached to the Advance Health Care Directive to allow your medical professionals the authority to discuss your medical records with your agent.
Durable Power of Attorney v. Springing Power of Attorney: A power of attorney grants your agent authority over your property and financial transactions. There are two general types of a power of attorney.
The Durable Power of Attorney gives authority for an agent to act on the principal’s behalf. It is effective immediately. The Springing Power of Attorney requires an event to happen for the Power of Attorney to come into effect. In the event of a medical event, it may require one or more medical professionals to determine that you are not able to make decisions for yourself and as a result the Power of Attorney would “spring” into effect.
Appoint an Agent and Alternate Agent: Similar to an Advance Health Care Directive, you need to appoint an agent and alternate agents to make decisions for you. It is recommended to only have one agent; however, there have been instances where different powers of attorney are granted for different financial transactions. For instance, one power of attorney related to a business owned, and another power of attorney related to personal matters.
Duration of Power of Attorney: The Durable Power of Attorney is valid for the duration of your life, unless you revoke it and generally is in effect immediately. The Springing Power of Attorney is also valid for the duration of your life unless you revoke it; however, it only comes into effect when you do not have capacity to make decisions for yourself and terminates when your capacity returns.
Nomination of Guardian
If you have minor children, a Nomination of Guardian identifies the person or persons you wish to take care of your minor children in the event of your incapacity or death. A Guardian of the Person has the same responsibilities to care for your children as a parent with full legal and physical custody would. A Guardian of the Estate is responsible for managing the child’s financial affairs and is typically necessary when a child inherits a large sum of money or property. In most cases, the Guardian of the Person and the Estate are the same person.
Review Your Estate Plan
If you know a major medical event is coming, such as major surgery, you should review your estate plan to make sure your Advance Health Care Directive, Power of Attorney, and Guardianship Nominations are appropriately updated to ensure your loved ones are able to appropriately assist with your financial and medical decisions.