Your Estate Plan’s Vital Signs are Stronger with Health Care Directives

Some of the most essential documents to have in your estate plan are your health care directives. These documents provide a framework on how you would like important health care decisions to be made if you’re ever unable to make them for yourself.

There are typically three health care directive documents in an estate plan. They are:

Health Care Proxy

A Health Care Proxy allows you to name someone to make health care decisions if you become unable to do so yourself. It is an important document, because it names the health care agent – the person you entrust to interact with health care providers and make decisions on your behalf.

If you don’t have a valid Health Care Proxy document, your loved ones will need to petition the court to appoint a guardian who will be charged with making decisions for you. This takes time and money and adds a significant burden for your loved ones. There also may be disagreement among family members about who should be making the decisions, which can complicate an already difficult situation.

Once you have signed the Health Care Proxy as part of your estate plan, it’s important not to sign any additional Health Care Proxy forms at hospitals or doctors’ offices. Why? Medical provider forms are standard state documents that aren’t as thorough as the one prepared by your attorney. If you sign more than one Health Care Proxy, your hospital or doctor is required to follow the document with the most recent date, which may not be the one in your estate plan.

Living Will

 A Living Will is a document that states your wishes for end-of-life medical care in the event you become unable to communicate these decisions yourself. The goal of a Living Will is to express your wishes with respect to taking “extraordinary measures.”

While it’s not a legally binding document in Massachusetts, a Living Will can help guide your health care agent (the person you name as your Health Care Proxy) if called upon to make an end-of-life decision.

Having the clear guidance of a Living Will can lighten the decision-making burden for your loved one. Without one, your loved one may end up guessing what they think your wishes are and could be potentially haunted by “what-ifs” and “should-haves” down the road.

It’s important to note that a Living Will is non-binding, which means a Health Care Proxy can override it. This can be helpful because your health care agent can consider the exact situation you may be in instead of relying solely on the circumstances outlined in a Living Will.

HIPAA Authorization and Release Form

The Health Insurance Portability and Accountability Act of 1996 protects the privacy of your health information. In doing so, it prohibits your health care providers from releasing information without your permission. A signed HIPAA form ensures that your providers can share information with the people you’ve identified. This can be especially useful if you are ever unable to give permission yourself.

A HIPAA form does not give those identified the authority to make decisions on your behalf. If you are unable to do so yourself, decision making resides with your health care agent, the person you identify in your Health Care Proxy.

As with the Health Care Proxy, you’ll want the HIPAA form in your estate plan to be your standing release. This means you should avoid signing HIPAA forms at provider’s offices as they will be less thorough, and, as with the Health Care Proxy, clinicians must abide by the most recently signed form.

Talking to an experienced estate planning or elder law attorney is a good first step in making sure your health care wishes are known and followed.

Founded by a nurse attorney and with offices in Acton, Burlington, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.

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