Having estate planning documents, including advanced medical directives, like a living will is a strong first step, but if they’re not available when needed, they’re useless.  Will your living will, health care power of attorney, HIPAA release, and organ donation authorization be available when needed?

Your living will must be presented to your treating physician to be honored.  If you don’t want medical heroics and life support machines, if you are in an irreversible coma or persistent vegetative state (i.e. end stage medical condition), you must ensure that your living will gets into the right hands.

How do you best ensure that your living will is available if you need it? 

• Before you name a loved one as your health care agent, ask if he or she is willing to serve.  Consider whether your potential agent is a good communicator, loves you, can handle medical situations, and can assertively represent your best interests to doctors and other medical staff.
• Name back-up health care agents in case your primary agent is unable or unwilling to serve.
• Communicate with your loved ones and let them know how you feel.  Explain that you don’t want medical heroics, including but not limited to life support, if you are in an end stage medical condition.
• Show your loved ones where you keep your living will and other important papers.
• Give your health care agents a copy of your living will.
• Send all of your health care documents, including the living will, to an online health care document storage services such as Docubank (www.docubank.com).  This ensures that your documents are available 24/7/365.  Docubank issues you a wallet-sized emergency card that you keep with your driver’s license and health insurance card.  Medical personnel can call and have your documents faxed or emailed to them immediately.

If you either don’t have a living will or aren’t positive it will be available when you need it, consult with a qualified estate planning attorney.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

A health care power of attorney is a legal document through which someone (called the “principal”) authorizes someone else (called the “agent”) to make health care decisions on his or her behalf, sometime in the future, if he or she cannot provide informed consent.

A health care power of attorney is an advanced medical directive.  This means that you make a decision now that will only have affect in a potential future situation.  Other advanced medical directives include a living will and organ donation authorization.

Your health care power of attorney may include a HIPAA release; if it doesn’t, you need a HIPAA release in a separate document.  This release is required by federal medical privacy laws and permits your medical personnel to release your confidential medical information and records to those you’ve named as health care agents.

The health care power of attorney is effective only if your doctors determine that you can’t provide informed consent.  If you can’t provide informed consent, your health care agent will step into your shoes to make medical decisions on your behalf.

Examples of medical decisions would be whether or not you have an operation or try a new medicine, the hiring and firing of doctors and other medical staff, and the choice of hospitals, rehabilitation facilities, or nursing home.

If you already have advanced directives in place, your health care agent cannot override your decision and is bound to enforce it.  Common advanced directives are a living will and organ donation authorization.

The living will is effective if you are in an end-stage medical condition such as a persistent vegetative state or irreversible coma.  There is no coming back.  Your health care agent must give your treating physician a copy of your living will.  Make sure it’s available.

If you don’t have a medical power of attorney in place or it’s more than a few years old, consult with a qualified estate planning attorney.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

If you’re a minor, under the age of 18 years of age, your parents or legal guardians are authorized to make health care decisions on your behalf.  If you’ve attained the age of 18, this is no longer true.  You must appoint health care agents to act on your behalf if you want to control who makes decisions for you.  Otherwise, state law or the courts will make that determination.

• Health Care Power of Attorney

You use a health care power of attorney, sometimes called a “medical power of attorney, to appoint a health care agent to make decisions on your behalf.  Be sure to name successor health care agents as well, in case your primary agent is unable or unwilling to serve.

Your health care agent should care about you and be able to communicate effectively with medical staff, including doctors.  Your health care power of attorney is only effective if you cannot provide informed consent.

You can change your health care power of attorney anytime you are alive and well, meaning that you have the mental capacity to sign legal documents.

• Living Will

The living will is an advanced medical directive in which you make medical decisions in advance of needing them.  It is typically used to state that medical heroics, including life support machines, are not to be used if you are in a persistent vegetative state or irreversible coma.

The living will best ensures that you get only the medical treatment you want, removes a serious burden of decision-making from your loved ones, and prevents family discord.

• HIPAA Release

The HIPAA release meets the requirements of federal privacy laws and gives medical staff the authorization to communicate with and share medical records with your health care agent.

• Organ Donation Authorization

If you want to be an organ donor, indicate such on your driver’s license, tell your loved ones, and sign an organ donation authorization form.

If you don’t have all four of these health care documents or your documents are more than three to five years old, consult with a qualified estate planning attorney.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

A living will is an advanced medical directive that is created during the normal estate planning process.  Most estate planning clients choose to execute a living will because they don’t want to be hooked up to machines at the end of life.  In other words, they don’t want their lives artificially extended with medical heroics.

Cheryl and her husband, Matthew, updated their estate planning when they moved to a retirement community outside of Dallas.  Cheryl and Matthew both executed living wills because they didn’t want medical heroics, including life support machines, if they were in an irreversible coma or persistent vegetative state.

They explained these wishes to their two adult daughters, Jennifer and Nicole.

Soon after their move, Cheryl was diagnosed with Parkinson’s disease.  Her symptoms worsened over a 5 year time period.  Falls were common.  One Thursday morning, Matthew heard Cheryl call out and fall in the adjoining room.  He rushed to her side and called 911.

Cheryl was taken to the hospital and put on life support.  Matthew then showed the doctors Cheryl’s living will and the doctors said that the living will would be effective because Cheryl was in a persistent vegetative state.  There was no hope of her regaining consciousness or of recovery.

Matthew called his daughters.  Jennifer and Nicole came from out of state to say good-bye to their mother.  Though sad for their loss, they discussed how glad they were that their mother had a living will and had made the decision herself.  There was no burden on their shoulders.

Life support was disconnected and Cheryl died about 15 minutes later.

This is how smoothly things can go when a living will works.  Note that Matthew and Cheryl had spoken to their adult daughters ahead of time and expressed their wishes.  In addition, Matthew communicated to the doctors that Cheryl had a living will and showed them the document.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

If you want to make your own health care decisions even when you are incapacitated, you need specific health care documents to ensure your wishes are carried out.  If you become incapacitated, your advanced medical directives speak on your behalf.

Advanced medical directives allow you to map out what health care treatments you want and what you don’t want.  In general, it’s likely wise to allow your medical doctors and health care agent (named in your health care power of attorney) to make good decisions based on the circumstances at hand.

But, if you’re like most people, you may have strong feelings about end of life medical decisions.  A living willis an advanced medical directive.  The living will takes effect if you are in an irreversible coma, persistent vegetative state, or otherwise terminal and at the very end of life.  If you don’t want medical heroics and machines to artificially extend your life, you need a living will.

A health care power of attorney is used to appoint trusted loved ones to make medical decisions on your behalf if you cannot make those decisions for yourself.  Choose an agent (and back up agents) who care about you and who can communicate effectively with medical professionals.

Be sure that your health care documents include a HIPAA release so that medical professionals are authorized to communicate with your health care agent under federal privacy laws.

Many people also choose to be organ donors so they fill out organ donation forms during their estate planning process.  Being an organ donor can save up to 8 lives and your documentation removes the decision making burden from your health care agent.

Your estate plan should include: living will, health care power of attorney, HIPAA release, and organ donation form.  You can keep these safe and always accessible by using an online service such as Docubank.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.