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Estate Planning Blog

Tuesday, September 13, 2016

Taking Control of Your Health Care (by Kyle A. Krasa, Esq.)

A key aspect of estate planning is to plan for health care decisions in the event of incapacity.  Below is an overview of the most common health care planning documents.    

Advance Health Care Directive  

An Advance Health Care Directive (“AHCD”) has two main features.  First, it allows you to name an agent to make health care decisions on your behalf if you are unable to do so.  Commonly referred to as a “health care power of attorney,” it is essential to name an agent and at least one or two alternates in the event that the first agent is for any reason unable or unwilling to act.  In selecting a health care agent, it is important to consider whether a particular candidate will be able to make difficult decisions in a crisis, will be available and responsive, will be a strong advocate on your behalf, and will be able to carry out your wishes even if they differ from the agent’s personal values.  

Second, an AHCD allows you to instruct your agent on how to make your health care decisions.  Often referred to as a “Living Will,” this feature allows you to give guidelines such as the use and extent of artificial life support, measures to alleviate pain even if such measures might hasten your death, decisions regarding organ donation,  and decisions related to the disposition of your remains.  

The statutory California AHCD form allows you to give general guidelines whereas other versions of an AHCD, such as the “Five Wishes” form, allow you to go into great detail with regard to health care instructions.  

An AHCD should also list the name and contact information of your primary physician in the event that the health care providers need your medical records or need to consult with your doctor regarding your care.  

In order to be effective, an AHCD in California must either be notarized or witnessed.  Furthermore, if the AHCD is executed in a skilled nursing facility, an additional signature by a “patient advocate” or “ombudsman” is required.  

POLST Form

A POLST (“Physicians Order for Life Sustaining Treatment”) form is an optional additional document that you should review with your doctor.  It allows you to create even more specific instructions than the AHCD and is used for specific purposes such as:              

- Whether or not to administer CPR in the event that you have no pulse and are not breathing;            

- Whether you desire “full treatment,”“selective treatment,” or “comfort-focused treatment” in the event that you have a pulse and/or are breathing;       

- Whether to administer feeding tubes on a long-term basis, a trial basis, or not at all.

In order for a POLST form to be effective, it must be signed by a licensed physician.  The purpose of requiring a physician’s signature is two-fold.  First, it forces you to have a discussion about the ramifications of these various choices with a medical professional.  Second, by having a physician’s signature, health care professionals are required to follow the order and are less likely to hesitate when executing difficult decisions.  

HIPAA Waiver

HIPAA, the “Health Insurance Portability and Accountability Act,” protects medical privacy by restricting health care professionals from releasing your health information.  While the concept of medical privacy is generally a good idea, it can become a problem if your agents are unable to access key information about your health and therefore unable to make informed decisions about your care.  By signing a HIPAA Waiver, you are authorizing health care professionals to disclose your otherwise protected health information to your health care agents and releasing the health care professionals from any liability for doing so.  Although it is a simple document, it is essential.

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Disclaimer: This article is for general information only.  Reading this article does not create an attorney/client relationship.  Before acting upon any of the information presented in this article, you should consult a competent attorney who is licensed to practice law in your community




Disclaimer: The information contained on this website is for general information only.  Watching these lessons does not create an attorney/client relationship.  The information is designed to supplement – but not replace – your need to work with an attorney who is licensed to practice law in your community.  You should consult with a licensed attorney before acting upon any of the information presented on this website. 



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