Wilson Legal, P.C. Cumming, GA Estate Planning - Probate Administration - Family & Criminal Law - Health Care

What is a health care advance directive?
How do you plan a health care advance directive?
Is a health care advance directive the same as a living will?
Why can't I just tell my doctor what I want?
Will doctors and hospitals recognize my advance directive?
What is the Patient Self-Determination Act?
How do you write an advance directive?
What kinds of decisions does a health-care agent make?
How do you select a health-care agent?
What is a Living Will?
What is a Durable Power of Attorney for Health Care?
What are the Duties of my Agent?
What are the Duties of Health Care Providers such as Doctors and Hospitals?
What is the Relationship between a Health Care Power of Attorney and Living Will?
Does HIPAA Apply to my Agent?

What is a health care advance directive?
A health care advance directive is the primary legal tool for any health care decision made when you cannot speak for yourself. "Health care advance directive" is the general term for any written statement you make while competent concerning your future health care wishes. Formal advance directives include the living will and the health care power of attorney.
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How do you plan a health care advance directive?
The starting point is realizing that merely completing an advance directive form will do you very little good if you skip the planning process. The process requires that you talk about your wishes and fears and options with your physician, family and whomever you will rely on to speak for you when you cannot. Think of the process as a continuing conversation, because it usually needs to happen more than once. Your views change as you age. And they may change dramatically if you encounter serious illness. For example, your thinking about end-of-life options would probably be different if you were a healthy age thirty-five, compared to a chronically ill eighty year-old. Completing an advance directive form should be the end product of the planning process, repeated at various turning points in our lives.
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Is a health care advance directive the same as a living will?
No. It serves some of the purposes served by a living will but serves other purposes too.

- A living will (or "medical directive" or "declaration" or "directive to physicians") is simply a written instruction spelling out any treatments you want or don't want if you are unable to speak for yourself and terminally ill or permanently unconscious. A living will says in effect, "Whoever is deciding, please follow these instructions!" On its own, a living will is very limited?it usually applies only to end-of-life decisions, and standard instructions tend to be general. Unless you have a good crystal ball, it is impossible to anticipate every future medical scenario.

- A health care power of attorney (or health care "proxy," or "medical power of attorney") is a document that appoints someone of your choosing to be your authorized "agent" (or "attorney-in-fact" or "proxy"). You can give your agent as much or as little authority as you wish to make health care decisions. The decisions are not limited to just end-of-life decisions. Appointing an agent provides someone with authority to weigh all the medical facts and circumstances and interpret your wishes accordingly. A health care power of attorney is broader and more flexible than the living will.

- A comprehensive Health Care Advance Directive combines the living will and the health care power of attorney into one document. In addition, you may include any other directions, including organ donation or where and how you prefer to be cared for. Because it is more comprehensive and more flexible than the other tools, it is the preferred legal tool.
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Why can't I just tell my doctor what I want?
Telling your doctor and others what you want is essential. Effective planning requires this continuing conversation among doctor, patient, and loved ones. If you don't complete a written directive, conversations provide important evidence of your wishes to help guide decisions later on, especially if your doctor records your wishes in your medical record. In a few states, oral instructions, if properly recorded by the doctor, can have the same legal standing as a written advance directive. However, both legally and practically, it is far better to do a written advance directive. The written advance directive will carry more weight and is more likely to be followed, especially if it supports and affirms your continuing conversation.
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Will doctors and hospitals recognize my advance directive?
Most doctors and health care facilities want to respect your wishes. However, some may refuse to honor an advance directive, perhaps based on religious belief. If a facility has such a policy, it should inform you at the time of admission. Doctors generally do not have the same obligation to inform you ahead of time, so it is up to you to find out your doctor's views. If a health care provider refuses to honor your wishes expressed in an advance directive, the law in most states requires that the provider make reasonable efforts to transfer you to another provider who will comply.
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What is the Patient Self-Determination Act?
1. Give you at the time of admission a written summary of:

- your health care decision-making rights (Each state has developed such a summary for hospitals, nursing homes, and home health agencies to use.)

- the facility's policies with respect to recognizing advance directives.

2. Ask you if you have an advance directive, and document that fact in your medical record if you do. (It is up to you to make sure they get a copy of it).

3. Educate their staff and community about advance directives.

4. Never discriminate against patients based on whether or not they have an advance directive. Thus, it is against the law for them to require either that you have or not have an advance directive.
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How do you write an advance directive?
There are all kinds of advance directive forms out there?both official forms in state law and unofficial forms created by state medical and bar associations, national organizations, and others.

No form is perfect for everyone. Keep in mind that the form is to aid, and not take the place of, communication. The form is a tool for planning and not the final outcome of planning. Any form you use should be personalized to reflect your own values, after thoughtful discussion with health care providers, family, and advisors. And after the form is properly signed, discussion should not cease. Your views are likely to evolve over your lifetime. Your instructions may cover any health care issue, such as:

- states or levels of functioning in which you would not want (or want) life-sustaining treatment, e.g., states such as permanent unconsciousness or severe dementia
- types of life-sustaining treatment you may want or not want and under what conditions - the use of artificial nutrition & hydration
- instructions about any other specific medical procedure that may be expected, in light of your personal and family medical history
- organ donation wishes
- preferences regarding pain control and comfort care
- preferences regarding other aspects of end-of-life care, such as your place of care and environmental wishes
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What kinds of decisions does a health-care agent make?
In writing your advance directive, you'll have to consider the scope of your agents' authority. A broadly drafted advance directive usually gives an agent authority to:

- consent to or refuse any medical treatment or diagnostic procedure relating to your physical or mental health, including artificial nutrition and hydration

- hire or discharge medical providers and authorize admission to medical and long-term care facilities
- consent to measures for comfort care and pain relief
- have access to all medical records
- take whatever measures are necessary to carry out your wishes, including granting releases or waivers to medical facilities and seeking judicial remedies if problems arise Remember, you can also limit the authority of your agent in any manner you wish.

In writing your advance directive, you'll have to consider the scope of your agents' authority. A broadly drafted advance directive usually gives an agent authority to: - consent to or refuse any medical treatment or diagnostic procedure relating to your physical or mental health, including artificial nutrition and hydration - hire or discharge medical providers and authorize admission to medical and long-term care facilities - consent to measures for comfort care and pain relief - have access to all medical records - take whatever measures are necessary to carry out your wishes, including granting releases or waivers to medical facilities and seeking judicial remedies if problems arise Remember, you can also limit the authority of your agent in any manner you wish.
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How do you select a health-care agent?
The choice of agent is the most important part of this process. Your agent will have great power if you become incapacitated. There is normally no formal oversight of your agent's decisions. Therefore, follow these guidelines:

- Speak to the person beforehand and explain your intentions. Confirm his or her willingness to act and understanding your wishes. That means talking honestly and openly about death and dying.
- Know who can and cannot be a health care agent in your state. Each state has different rules. Most prohibit your doctor and other health care providers from being your agent, unless they are related to you.
- Seriously consider naming successor agents.
- Avoid naming co-agents. It adds potential for disagreement and logistical complications. If you really want co-agents, have a plan for what happens when there is a split decision among them.
- If you trust no one to be your agent, don't name one. Instead, use only the living will or limit the authority of your agent, by giving the agent authority over some but not all treatment decisions, or by requiring concurrence between your agent and physician.
- Talk with a compentent attorney who can help you resolve the issues named above to be sure that your plan is best suited to your wishes.

The Terry Schiavo case in Florida highlighted the importance of living wills and advance health care directives. At the time of her death in March 2005, Ms. Schiavo, who did not have a living will, had been under constant care for nearly 15 years after suffering extensive brain damage in 1990. Parties for both sides spent hundreds of thousands of dollars in legal fees and invested years in heart-wrenching litigation over whether the feeding tube keeping Ms. Schiavo alive could be removed. The Frequently Asked Questions discuss two methods recognized in Georgia for ensuring that your wishes regarding your health care are respected should you be unable to speak for yourself: the living will and the durable power of attorney for health care.

You have the right to control all aspects of your personal care and medical treatment, but if you become disabled, incapacitated or incompetent, someone else will need to make those decisions on your behalf. Living wills and durable powers of attorney for health care may be used to specify your wishes regarding your health care matters and whether you want life support if you are in a condition to require it. These documents are sometimes referred to as health care directives or health care proxies, and may even be incorporated into one document.
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What is a Living Will?
A living will is a document that allows you to make known your wishes as to whether life sustaining or death delaying procedures, food and/or water should be withheld or withdrawn in certain limited circumstances. A living will is effective in the event you suffer from one or more of the specific conditions of (1) a terminal illness, (2) a coma with no reasonable expectation of recovery, or (3) a persistent vegetative state with no reasonable expectation of regaining significant cognitive function.
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What is a Durable Power of Attorney for Health Care?
A durable power of attorney for health care is a document which allows you to authorize another person (called an agent) to act on your behalf in matters relating to your personal care, medical treatment, hospitalization, and health care. These powers include an authorization to require, withhold, or withdraw any type of medical treatment or procedure. This power of attorney is called "durable" because it continues to be effective (and in some cases can only be effective) upon your disability, incapacity or incompetency. Unlike a living will, which generally only applies to end-of-life decisions, a health care power of attorney may apply to a number of lesser, non-life threatening situations in which a medical care decision must be made.
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What are the Duties of my Agent?
Your agent is not allowed to make health care decisions that are different from or contrary to your wishes. However, because the agent will speak on your behalf if you are unable to speak for yourself, it is very important that you choose an agent who knows what your decisions would be in certain situations. The health care power of attorney can give your agent the power to consent or refuse all types of medical care and treatments. These include decisions on medication, surgery, or life-sustaining or death-delaying treatment. You may also authorize your agent to examine and consent to disclosure of your medical records and provide for choices for your health care based on your religious beliefs. Your agent can decide whether to admit you to or discharge you from a hospital or nursing home and can authorize contracts for all types of health care services. You may give your agent the power to make post-death decisions including the right to authorize an autopsy or consent to anatomical gifts. You may also specify your wishes regarding burial or cremation.
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What are the Duties of Health Care Providers such as Doctors and Hospitals?
Once given a copy of your health care directive, if the health care provider believes that you are unable to understand the general nature of the health care procedure that the provider deems necessary, then the provider should consult with the agent named in your power of attorney or follow the treatment wishes you expressed in your living will. The provider must comply with the treatment decision made by your agent or as otherwise expressed in your health care directive to the same extent as if made by you at the time of the treatment decision.
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What is the Relationship between a Health Care Power of Attorney and Living Will?
Generally, if you have a health care power of attorney, your living will does not apply as long as your agent is available to deal with the subject of life-sustaining or death-delaying procedures on your behalf. If your agent is not available, then your living will can specify your decision regarding the procedures.
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Does HIPAA Apply to my Agent?
The federal Health Insurance Portability and Accountability Act (HIPAA) strictly limits access to your private medical records. This Act protects your private medical records and history from disclosure to third parties except upon your request or as necessary to treat you. A well-drafted health care power of attorney will allow your agent access to your private medical records so that he or she will have the information necessary to make an informed decision.
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