Advance Directives and Healthcare Documents

Advance directives are legal documents that allow individuals to express their wishes regarding medical treatment and designate who can make healthcare decisions on their behalf if they become unable to communicate. These documents are essential components of comprehensive estate and incapacity planning.

Core Healthcare Planning Documents

Living Will (Declaration of Healthcare Preferences)

A living will is a written statement of a person's wishes regarding medical treatment in end-of-life situations:

What It Covers:

• Use of life-sustaining treatments (ventilators, feeding tubes)
• Artificial nutrition and hydration preferences
• Pain management and comfort care
• Organ and tissue donation wishes
• Specific treatments to accept or refuse

When It Takes Effect:

• Only when the person is terminally ill or in a persistent vegetative state
• Only when the person cannot communicate their wishes
• Typically requires physician certification of the triggering condition

Limitations:

• Cannot anticipate every medical scenario
• May not address situations that don't meet the triggering conditions
• Should be supplemented with a healthcare proxy

Healthcare Proxy (Healthcare Power of Attorney)

A healthcare proxy designates an agent to make medical decisions when the principal cannot:

Powers Typically Granted:

• Consent to or refuse medical treatment
• Select healthcare providers and facilities
• Access medical records and information
• Make decisions about surgery, medications, and procedures
• Decide on end-of-life care and hospice

Key Differences from Living Will:

Best Practice: Use BOTH a living will AND healthcare proxy. The living will guides the proxy's decisions, while the proxy can address situations the living will doesn't cover.

HIPAA Authorization

The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of medical information. Without proper authorization, healthcare providers cannot share protected health information (PHI) with anyone, including family members.

Why HIPAA Authorization Is Essential:

• Healthcare proxy may not automatically grant access to medical records
• Family members need access to understand the patient's condition
• Financial planners and attorneys may need medical information for planning
• Insurance companies may require medical information for claims

What HIPAA Authorization Allows:

• Access to medical records and test results
• Communication with healthcare providers
• Receipt of information about diagnosis, treatment, and prognosis
• Discussion of healthcare options with medical staff

Key Point: A HIPAA authorization should be included with or attached to healthcare planning documents, but it is a separate authorization from the healthcare proxy itself.

Do Not Resuscitate (DNR) Orders

A DNR order instructs healthcare providers not to perform cardiopulmonary resuscitation (CPR) if the patient's heart stops or breathing ceases:

Types of DNR Orders:

• In-Hospital DNR: Placed in medical records by a physician
• Out-of-Hospital DNR (POLST/MOLST): Portable order recognized by emergency responders

Important Distinctions:

• DNR is a physician's order, not a patient-created document
• The patient (or healthcare proxy) must consent to the DNR
• DNR does NOT affect other treatments - only CPR
• Can be reversed if patient regains capacity and changes mind

POLST/MOLST Forms: Physician Orders for Life-Sustaining Treatment (POLST) or Medical Orders for Life-Sustaining Treatment (MOLST):

• Signed by both physician and patient
• Brightly colored for easy identification by emergency responders
• Covers CPR, intubation, and other life-sustaining measures
• Travels with the patient between healthcare settings

Coordination of Healthcare Documents

For effective healthcare planning, multiple documents must work together:

Comprehensive Healthcare Document Checklist

Ensuring Documents Work Together

1. Name the same agent in healthcare proxy and HIPAA authorization

2. Include HIPAA language in the healthcare proxy or as an attachment

3. Discuss preferences with the healthcare proxy to guide their decisions

4. Provide copies to:

   • Named healthcare proxy/agent
   • Primary care physician
   • Hospital or healthcare system
   • Family members who may need to locate documents
   • Attorney who prepared documents

5. Review and update documents:

   • After major health changes
   • After relationship changes (divorce, death of agent)
   • Every 3-5 years to ensure current preferences are documented
   • When moving to a new state (laws vary)

State Law Variations

Healthcare documents are governed by state law, and requirements vary:

• Form Requirements: Some states have statutory forms; others allow any clear expression
• Witness Requirements: Number of witnesses, who can serve as witness
• Notarization: Required in some states, optional in others
• Agent Restrictions: Some states restrict who can serve as agent (not treating physician)
• Reciprocity: Most states honor out-of-state documents, but not guaranteed

Planning Tip: If a client spends significant time in multiple states, consider executing documents that comply with each state's requirements.

Common Planning Mistakes

1. No HIPAA authorization: Agent cannot access medical information
2. Outdated documents: Named agent deceased, divorced, or unwilling to serve
3. Conflicting documents: Living will and proxy give different instructions
4. Documents not accessible: Family cannot locate documents when needed
5. Agent not informed: Proxy doesn't know patient's wishes or that they've been named
6. Only living will, no proxy: Cannot address unanticipated situations

Key Exam Concepts

1. Living will vs. healthcare proxy: Living will = instructions; proxy = person
2. HIPAA authorization is separate: Required for agent to access medical records
3. DNR is a physician's order: Patient consents but physician creates it
4. Documents must be coordinated: All healthcare documents should work together
5. State laws vary: Forms and requirements differ by jurisdiction
6. Both living will AND proxy recommended: They serve complementary purposes
7. Regular updates needed: Documents should be reviewed after life changes