Do you know your wishes if you were to end up in a coma? Do your family members and close friends know what your wishes would be? The truth is that this deeply personal decision is often not made by the person who will be most affected by it. Without having your own medical directives, many questions about your physical care and support are left unanswered. By not having legally declared your wishes, if something should happen to you, your loved ones would be in the ultimate nightmare situation.
When we think of estate planning, we tend to only plan how our assets will be distributed in the event of our death. Many people don’t consider putting plans in place for becoming incapacitated. Making your medical wishes known is a critical (yet often overlooked) element of preparing for the future and making things easier for your loved ones.
When you’re ready to put these plans in place, your attorney will prepare at least one of these three documents.
A living will is a legal declaration that states your end-of-life wishes. Most living wills indicate whether or not, if you were to fall into a permanent vegetative state or have a terminal illness, your life should be artificially prolonged. In other words, the document can let the doctors know that you would want to be taken off life support if there’s no chance of recovery. Some people opt to declare the opposite. They want to be artificially kept alive, even if there is no chance of recovery.
Regardless of your stance, you need to make your wishes clear. Talk with your doctor and attorney about what makes the most sense for you.
An Advanced Health Care Directive (also known as a Health Care Power of Attorney) works in conjunction with your living will. It allows you to designate someone to make and carry out your medical decisions for you if you are incapacitated. It provides instructions on your medical evaluation and treatment, long-term care and hospice, and your wishes on staying in your residence versus a facility. You can determine who has the power to hire and fire your doctors, as well as your wishes when it comes to pain relief, psychiatric treatment, organ donation, and other important decisions that must be made should you become incapacitated.
Don’t leave your family in a position where it’s unclear who you want to make medical directives decisions for you. Maybe you think it would be clear you want your spouse, but what if your spouse couldn’t do it? What if your spouse was also injured or was simply not in a mental state to make decisions for you when needed? An Advanced Health Care Directive addresses all of these scenarios, and everyone needs one.
Do you know what would happen if your best friend rushed to the hospital after hearing that you were in an accident? Unless they were previously authorized, the hospital would be unable to provide them with any information about you. You probably already know that your medical information is private. Even if your attorney called your doctor and asked for a copy of your records, they wouldn’t be able to receive it without your authorization. This is because Congress passed a law known as the Health Insurance Portability and Accountability Act (HIPAA). It limits the use, disclosure, or release of your health information. In light of HIPAA, we must make provisions for these emergencies. By executing a HIPAA authorization form, you can list the names of individuals you are authorizing your doctor to talk to. This takes the guesswork out of the matter and can prevent unnecessary disagreements between your loved ones.
If you have not yet completed a HIPAA authorization form, you should consider doing so as soon as possible. In addition to your spouse and backup decision makers, you should authorize key friends or family members who could help relay word of your condition to the people who love and care about you. You will also want to ensure that any of your financial decision-makers are listed so that if you are incapacitated, they can use your assets as you deem fit.
Are you familiar with the Terri Schiavo case? In 1990, a seemingly healthy 26-year-old woman went into cardiac arrest. Although she was successfully resuscitated, she was left comatose after experiencing massive brain damage. After nearly three months without improvement, her doctors advised that she was in a persistent vegetative state. Her doctors made several attempts to bring her back to a state of consciousness, but all their efforts proved futile. After years of occupational therapy, speech therapy, and various other treatment forms, her husband decided to take Terri off life support in 1998.
For the next seven years, her husband and parents were involved in a highly publicized legal battle. Terri’s husband believed that she would have preferred to be taken off life support than to spend the rest of her life in that state. Her parents wanted to keep her on life support for as long as possible because they believed that’s what she would have wanted. Sadly, of course, Terri wasn’t able to communicate her wishes. After several rounds of appeals, she was taken off life support in 2005 at the age of 41. She was on life support for fifteen years.
Terri Schiavo’s heartbreaking case emphasizes the importance of knowing medical directives wishes. If she had prepared a living will, advanced healthcare directive, or HIPAA authorization, her family could have avoided the lengthy and mentally challenging court battle.
Are you ready to put plans in place and make your wishes known in writing? Consult our experienced incapacity planning attorney to discuss your options.