August 18, 2015

Another estate planning tool that will strengthen your incapacity plan is Health-Care Decision-Making documents. These essential documents inform your Health Care Surrogate (the medical decision maker) what type of treatment you desire or don’t in certain scenarios. Think of this as a set of instructions you are leaving to your Health Care Surrogate. It is the best way to make sure your wishes are to be fulfilled.

The Three Must-Have Documents for Health Care Decision-Making

There are three essential legal documents for making health care decisions that must be in place prior to becoming incapacitated:

1.      Designation of Health Care Surrogate.  This legal document, also called an Advance Directive or Medical or Health Care Proxy in other states, gives your surrogate the authority to make health care decisions for you if you cannot do so because you have become incapacitated.

2.      Living Will.  This legal document gives your agent the authority to make life-sustaining or life-ending decisions if you become incapacitated.

3.      HIPAA Authorization.  Federal and state laws dictate who can receive medical information without the written consent of the patient.  This legal document gives your doctor or other health care provider the authority to disclose your medical information to the agent selected by you.

Planning Tip:  Your loved ones may be denied access to medical information during a crisis situation and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years).  Without these three documents, a judge may also appoint a Guardian or Conservator of the Person to oversee your health care, thereby adding further expense and hassle to your court-supervised guardianship or conservatorship. You should have these three documents examined and updated frequently to ensure they accurately reflect your wishes.

How to Choose the Right Health Care Surrogate for Your Incapacity Plan

Factors you should consider when deciding who to name as your health care surrogate include:

  • Where does the surrogate live?  For this designation it is in your best favor to name a health care surrogate that lives near you. Should a situation ever arise where your health care surrogate must be present to make medical decisions, you want to ensure that geographical location will not hinder them from carrying out their responsibilities.
  • How busy is the surrogate?  As stated above, if your health care surrogate has a demanding job/lifestyle that causes them to leave town frequently, they will most likely not be your best option. The health care surrogate should be someone who has flexibility to drop what they are doing should an emergency ever arrive.
  • Does the surrogate have expertise in managing the health care field?  Though not necessary, an agent with familiarity in medicine (by profession or personal experience) may be a better choice than a surrogate without it.

Planning Tip:  Choosing the wrong person to serve as health care surrogate will result in an ineffective incapacity plan. In order to create a functional plan, you need to carefully consider who to choose as your surrogate and then discuss your decision with that person to confirm that they will in fact be willing and able to serve.

Is Your Incapacity Plan Up to Date? As time passes by and your life changes, your incapacity plan will become stale and outdated.  It is important for you to have your incapacity plan reviewed every few years or after a major life event (such as a divorce or a death) to ensure that the plan will work the way you intend it to if it is ever needed.

For more information or if you believe your incapacity documents need to be updated, call our office (407-574-8125) to schedule a consultation.