Health Care Powers and Living Wills

Health Care Power.† Even though these documents donít relate to estate planning, Medicaid and VA benefits planning, there are never-the-less critical. Everyone needs a Health Care Power and a Living Will. These documents are also called Advance Directives. The two documents are frequently combined into one document. The Health Care Power allows your agent to make course-of-treatment decisions if the person cannot make the decision themselves. Hospitals usually ask if you have these forms when a person is admitted to the hospital. Physicians want to know who will make treatment decisions if the person is unconscious, if the person is too sick to decide for themselves, or if the person is temporarily incapacitated.

HIPPA Power. The Health Care Power should also have a provision allowing the agent to obtain medical records for the person if he or she is incapacitated. Older Health Care Powers may not have these provisions. The passage of the HIPPA law in 2003 was designed to protect patients privacy rights. Therefore, since 2003 it has been important to have specific provisions in the health care power allowing the agent to access the person’s records.

Living Will or Directive to Physician. The Health Care Power is often confused with the Living Will or Directive To Physician; however, they are used for different purposes. The Living Will or Directive is the “pull-the-plug” document. It is very limited. It only goes into effect if the person is in a terminal or irreversible condition and cannot speak for himself or herself as determined by the physician (or the physician and agent, depending on how the document is written). If those conditions are met (terminal and unable to speak), then the document says to allow the person to die, keeping them as comfortable as possible, or it says to keep the person alive with all medical resources.

Creation of the Documents. The Health Care Power and Living Will can be drafted by an attorney. Forms may be available from hospitals and over the internet. These forms must be executed properly Ė signed by the person and either witnessed by two disinterested witnesses or notarized.

Name More Than One Agent: The person creating the documents should name a primary agent and at least one back-up agent if that is possible.

“Do Not Resuscitate Order.”† These forms are often confused with “Do Not Resuscitate Orders.” The Order is prepared in consultation with the person’s physician. Most people would not want to execute this document. It is used most often by very elderly people who are living in a nursing home or who are in very feeble condition. This document says that the person does not want to be resuscitated if they collapse. The purpose is to stop emergency medical technicians or others from trying to restart a person’s heart or breathing.

State Specific. States may have their own suggested formats and different required formalities to create valid documents.