Health Care / Advance Directives
These are instructions on how the executor or administrator or other person shall proceed in the event of incapacity of the testator. These are very complicated and should be prepared by an attorney. Our firm incorporates these advance directives into our revocable living trust and they are part of the comprehensive revocable living trust package.
There must a separate HIPAA [Health Insurance Portability and Accountability Act] form signed in 14 point type. This allows authority to obtain medical records, speak with medical personnel and obtain information necessary for the administrator or executor to make informed and intelligent decisions. It is essential to have the HIPAA witnessed as well as the advanced health care directive since it may need to be used if the testator is in another state other than California as some states require the HIPAA to be witnessed in order to be valid. If the testator is in a skilled nursing home in California, then there needs to be the Ombudsperson present when the HIPAA is signed and there can be no familial relationship between the Ombudsperson and the testator.
The power of attorney section allows you to name who you would like to make your health care decisions when you cannot. Of course, you need to think carefully before assigning this power. Make sure to review your advance health care directive regularly as a person who you selected in the past may not be appropriate now. This person can consent or refuse consent to any medical treatment, service or other medical care. This person can also select or discharge medical providers or medical institutions. In addition, there can be an approval or disapproval of diagnostic tests, medication programs and surgical procedures.
In addition, there can be a direction of providing or withholding artificial hydration and nutrition and other forms of health care. This can be, literally, a life and death decision. The Terry Schiavo case highlighted the problems which occur when this advance health care directive is not available. This led to numerous court hearings in which both parties spent hundreds of thousands of dollars and also led to conflict and bitter feeling within their family. Do not let this happen to your family. In addition, accidents can happen to any of us at any time and leave us unable to communicate our wishes.
Advance directives also can be very useful for the disposition of the remains of the testator after death. Some persons would like to have their organs used for research or other medical purposes. This will also list any specific organizations or locations for this to occur. This is similar to the notations on driver’s licenses for donation of organs after death in California. In addition, the testator is allowed in advance to direct the disposition of his remains either by cremation, burial or other and also where this is to occur. This is a very important document and needs to be completely accurate as the testator will be deceased and not able to communicate his wishes.
The advance health care can contain the following clauses however this is not all inclusive: designation of health care agent; designation of alternate agents; nomination of conservator of person and their estate; general statement of authority granted; when the agent’s authority become effective; instructions for health care; inspection and disclosure of information relating to physical and/or mental health; signing documents, waivers and releases; donations of organs at death for transplant, therapy, research and education or a combination of any or all; disposition of remains; autopsy; effect of a copy and that prior designations are revoked. This needs to be signed and dated and notarized.