A recent survey showed that 70% of people wished to die in their own homes, but that in fact 75% of deaths occur in hospitals, nursing homes, and other similar environments. Why this unfortunate discrepancy? Well, as medical science develops people are being kept alive longer, but this requires high levels of care which often cannot be provided in the home. At the same time, health care providers are understandably concerned about the risk of litigation should they withdraw life-prolonging care without clear authorization. As the case of Terri Schiavo illustrated last year, if a patient fails to express his or her own wishes in clear and enforceable ways, the uncertainties and complexities surrounding terminally ill patients can tear grieving families apart.
The good news is that the legal tools exist to allow a person to take control of their own medical treatment. A Healthcare Directive – also known as a “Living Will” – specifies what treatment you do and do not want to receive should you become terminally ill. These directives are of limited application, however, and so in addition a Durable Healthcare Power of Attorney is necessary. This appoints someone you trust to make medical decisions on your behalf in the event that you become too ill to make those decisions yourself (but not necessarily terminally ill). Clearly, choosing the right agent is of paramount importance. You should pick someone who is decisive and who is willing and able to stand up for your rights as a patient. For obvious reasons, most people choose close family, but you should consider carefully who among that group will best be able to protect your interests and follow your wishes. Not all family members may be equally equipped for what can be a difficult task.
In addition to these two primary documents, a second Durable Power of Attorney, for financial matters, will allow your agent to manage your affairs while you are sick, without first having to go to court for approval. The Health Insurance Portability and Accountability Act (“HIPAA”) restricts the release of a patient’s health-related information by health care providers to third parties. This can be a significant obstacle to your plans, since your agent won’t be able to make decisions on your behalf if he or she is denied access to the relevant medical information. Health care providers have recently (quite rightly) become more cautious about compliance with HIPAA, and it is therefore critical that an appropriate release form is signed to authorize such disclosure to your chosen agent.
If you don’t want to employ an attorney for all this, there are many forms available either for free or at low cost which may be used instead. For example, the Missouri Bar provides a Healthcare Directive and Durable Power of Attorney, with excellent explanatory notes, which may be downloaded from their website: www.mobar.org. Of course, such forms are by their nature of a rather general application and may not always be appropriate, especially if your requirements are unusual or unorthodox.
It’s a good idea to revisit your healthcare documents on a regular basis to check that they still accurately reflect your wishes. Once illness prevents you from communicating, you will no longer be able to change them (until you recover), and so any problems which subsequently arise will not be able to be rectified. It’s also important to ensure that the relevant people are made aware of the documents before you fall sick. For example, many people send a copy of their Healthcare Directive to their primary attending physician. You should also discuss with your agent how you expect them to perform their duties. Advance communication – making sure that your agent understands exactly what you want, and why – is by far the best way to ensure that your wishes will be followed in the future. It may be one of the most important conversations you’ll have.
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