Walking into the Hospital Prepared
This post is written by Kate Williams, who is an estate planning attorney. This is not to be construed as legal advice, but just some good practical guidance to anyone who is having a procedure of any kind done in a medical setting.
“Ma’am, do you have advanced directives?”
I tried to come up with a good joke or excuse to answer the labor and delivery nurse’s inquiry as she helped tie me into the gown I would deliver my firstborn in.
“No.” I replied sheepishly.
Everyone probably feels a small amount of shame for not having their “affairs in order” in a moment like this. As an attorney, clients relay this kind of embarrassment to me all the time, so I felt especially foolish answering the labor and delivery nurse. Not only am I an attorney, I’m married to an attorney, with a whole friend group of attorneys. We all met in law school.
Fortunately for me, there was no need for someone to make medical decisions on my behalf, but I was relatively lucky. While childbirth may be seen as routine and safe, women do die just for doing this incredibly natural part of life that humans have been doing for tens of thousands of years. It is easy to assume all will go well when you enter a hospital, but I knew I did not want to make the same mistake again.
What are advanced directives?
Advanced directive is a fancy legal term for a set of documents that typically includes:
A health care power of attorney;
A living will;
A HIPAA waiver; and
Any other medical instructions you wish to include.
What is a health care power of attorney?
In the event you are unable to make decisions on your own behalf someone else will have to do it. The problem is, under the laws in the United States, another person cannot make decisions for an adult without the legal authority to do so. There are two ways this can happen: 1) to write down the people you trust to make healthcare decisions for you in a legal document called a health care power of attorney; or 2) to have a court appoint a guardian of the person to make decisions for you.
A court? What does that mean?
Basically, if you do not take the initiative to nominate a person as your agent for health care power of attorney, your friends and family will have to go to your local probate court (or probate court equivalent in your jurisdiction) and initiate legal proceedings (ie a court case) to have a judge appoint a person to handle your legal affairs. That person is usually called a guardian or conservator.
Remember Britney Spears? Her father was appointed as her conservator in the State of California over her financial affairs and her personal healthcare decisions. Despite her wealth and fame, she did not have a prior plan set up as to who would oversee her affairs in the event that she was unable or unwilling to do so for herself. In a very controversial act, her father initiated court proceedings to become the person to act on her behalf, and did so without her consent.
This all sounds horrifying and scary. It certainly can be. Usually young people who are typically-abled do not believe they have a need to arrange such things. Guardianships are more common in a setting with an older adult who is losing faculties due to a degenerative brain disease. It can be difficult for a young, healthy person to imagine the need to establish a guardian or a conservator, and as such, many people put off having an estate plan. After all, incapacity and dying is an old person’s problem, right? The reality is, young people are often in an accident of some kind that renders them incapacitated.
Do I Need a Power of Attorney?
Every adult should have a set of documents that designates individuals to make health care or financial decisions on their behalf. Life is wildly unpredictable and some of the saddest guardianship cases occur when a young person is the victim of a medical or other accident that causes them to be incapacitated.
If the idea of having a local probate court appoint a stranger or Britney Spears’s father as a guardian for you is distasteful, take control of your life and appoint your own agents. Find a local estate planning attorney to prepare some financial and health care power of attorney documents for you. (While you’re at it, discuss a Last Will and Testament, especially if you have minor children!)
By the Way, What is HIPAA?
HIPAA is an acronym for the Heath Insurance Portability and Accountability Act of 1996. HIPAA is a federal law that protects your private health information from being disclosed by certain organizations.
HIPAA is designed to protect YOU as a patient. It is NOT designed to protect your doctors, your hospital, or your insurance company. You are entitled to your personal health information, HIPAA simply bars other parties from sharing it without your knowledge or consent.
Why are we talking about HIPAA? Why does this matter?
HIPAA can oddly become an impediment to an agent acting on your behalf under a healthcare power of attorney if it has not been expressly waived by you in writing, prior to the time your agent needs to use it. If you take the time to name a person you trust to make intimate decisions about your care, take the time to make sure HIPAA is waived so they can legally gain access to your healthcare information.
Being Prepared
Estate planning and dealing with lawyers can be a little daunting. Many people put off meeting with a lawyer for this reason and too many people put it off until it’s too late. Call some local attorneys who specialize in estate planning and get a feel for someone you are comfortable with. Let the professional guide you through this process and be sure to ask lots of questions. Arm yourself with the tools and confidence you deserve when you walk into the hospital doors.
