Ep. 5: The Three Legal Documents You Need to Have to Make Sure Your Medical Wishes are Taken Care of

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In this episode of Repair the Roof, Attorney Ted Gudorf discusses the three legal documents you need to have to make sure your medical decisions are taken care of, whether youre 18 years old and going off to college, or 95 years old and in a nursing home.

It is extremely important to be clear about whom you want to make medical decisions for you when you cant, and also to give you some guidance about end-of-life decisions.

The first document is a HIPAA (Health Insurance Portability and Accountability Act of 1996) authorization, through which you designate other individuals to speak with your doctor for information relevant to your medical condition.

The second document is a healthcare power of attorney, through which you designate other individuals to make medical decisions for you if you cannot.

The third document is a living will, which lists your wishes with regard to end-of-life. The living will is different from a pour-over will, which lists the beneficiaries of your probate estate.

Key Topics:

  • HIPAA authorization (1:12)
  • Healthcare power of attorney (7:11)
  • Living will (14:36)
  • The difference between these three documents and a DNR (do-not-resuscitate) order (20:21)


Transcript: Prefer to Read — Click to Open

Welcome to today’s show. This is episode five. We’re recording this episode from our own recording studio at our law office in Clayton, Ohio. Today’s topic is what legal documents do you need for medical decisions? Why is this so important? It is extremely important that each one of us be very clear about who we want to make medical decisions for us if we can’t, and also to give some guidance about end-of-life decisions. Well, in today’s podcast, we are going to cover four specific legal documents. And we will get into them in a little bit of detail. The first document that everyone should have, whether you’re 18 years old, going away to college, or your 95 in a nursing home, you should have something called a HIPAA authorization. What does that stand for? Well, HIPAA, stands for Health Insurance Portability and Accountability Act. This legislation was adopted by Congress all the way back in 1996. What was its purpose? Well, the primary purpose of the HIPAA act was to make sure that each of us our medical information was protected, unless we authorized it to be released, seems to make perfect sense. We want our medical information to be confidential. And we don’t want anyone, whether it be a physician or a hospital, or a nursing home, to disclose any information concerning our condition to anyone else, unless we give our permission. Well, the problem that that created was, it precluded medical professionals from being able to give information to family members, or other professionals, such as your spouse, or your children or grandchildren, or what may be your neighbor, or other medical professionals who are being called in to assist. So what the legal community developed in response to the HIPAA act of 1996 was simply a detailed authorization where you can identify the individuals, you want to have access to your information. And you can Furthermore, identify the type of information you want them to be able to access, it can include all of your medical information, and typically it does. Now here at our firm, we will ask every single one of our clients to execute this authorization to identify the individuals. And if we identify more than one and we typically do, they can all simultaneously have conversations with your medical team, they can have access to your medical records. So it is not typically put in a successive order. All information can be shared with all of the individuals who are listed on the HIPAA authorization form. We’re going to give them access to all medical information unless for some reason a client wishes otherwise. That HIPAA authorization is placed in your chart with every one of your medical providers. And to the extent that a hospital is receiving federal funds, they’re required by law to ask you if you have signed such an authorization. Now, this authorization is different than the authorization you sign perhaps in your physician’s office. Oftentimes, when we go to our doctors, and we check in, we’re given some documents to review, to fill out and sign. Oftentimes one of those is a form of a HIPPA release. But it is not a general authorization. In other words, the document that we get in the doctor’s office oftentimes is simply limited to just that particular physician. It enables that physician to disclose information typically, with other medical providers or members of his medical team. It is not a general authorization to allow disclosure to your family members. Typically, occasionally it is, but most of the time it is not. Now on the general authorization, we also ask our clients to authorize our law firm, to be able to have conversations with your physicians, and also to obtain medical records. Typically, in the general authorization, we limit the law firms need to get this information to those circumstances under which we’re assisting family members and determining capacity of you. So if there is a circumstance where we have to determine whether you are or not incapacitated, for whatever reason, let’s say for some reason, we want to get a guardianship. The general authorization that you signed will allow the medical community to communicate with our law firm as well. And we think that that is an extremely beneficial for you and your family to have that authorization on the HIPAA form. So the first thing we have to do, what all of our clients do, is to sign a general HIPAA authorization, identify the individuals identify the documents, put it into effect immediately. And we’re good to go. Because without that HIPAA authorization, your medical information is required to be kept confidential, even from your family. And that’s not a good situation, particularly when you get to a point where you can no longer make medical decisions for yourself. What do we do? Okay, so that’s number one.

Let’s talk about number two, which is a critically important legal document. It is called a healthcare power of attorney. Here in Ohio, that healthcare power of attorney only takes effect if a physician determines that you’re no longer able to make medical decisions for yourself. So just remember, as long as you can make medical decisions for yourself as determined by your physician, you will always be able to do that. In other words, you’re going to be in control of your own decisions. Having said that, the purpose of the healthcare power returning is to put someone else in your place, should you not be able to make medical decisions for yourself. Let’s say you go in for surgery and you’re under anesthesia, and a decision has to be made about continuing care. If you’ve identified an individual and they are available, then they can make those decisions for you. Now, typically, on a healthcare power of attorney, we’re going to designate this person as your agent. And we’re going to oftentimes designate one primary person and then a list of successor alternate agents. Sometimes we’ll list one person as your primary, a second person as your alternate and a third as your second alternate. Here in our office, we have modified our healthcare power of attorney to allow our clients to add up to four alternate agents. So, a total of five. One of the reasons why we are encouraging all of our clients to name at least two alternate agents if not more, is because the healthcare agent designated under the power of attorney is going to have to be present at the time, the decision are going to need to be made. The days of taking or making medical decisions long distance are pretty well over with. Most medical professionals do not want to disclose information over the telephone certainly don’t want to rely upon a telephone conference

to make medical decisions for someone else. Now, with the advent of zoom conferences, or teams meetings, we may find that that’s going to change in the future. That remains to be seen. But suffice it to say, best practices are to name at least two alternate agents and up to possibly four alternate agents. So that we can make sure that there is at least somebody there who you trust, to make sound medical decisions for you if you cannot. Now, just remember, as I indicated earlier, it is all medical decisions we’re talking about that is what type of treatment, whether you get the treatment, the location of the treatment, to authorize you to be transported. In fact, it even goes so far within the standard healthcare power of attorney to authorize your agent to even select a nursing home for you. So, it is all powerful. One of the limitations placed within our healthcare power of attorney form deals with end-of-life decisions. Your healthcare agent is precluded from removing, intravenously provided nutrition and hydration unless two physicians have previously determined that the withdrawal of the intravenous interest provided nutrition hydration, will not provide you with any comfort care. If the withdrawal, in other words, that the nutrition and hydration withdrawal will not cause you any pain. If two physicians certified to that effect, then if you’ve initialed the box on the healthcare power of attorney form, authorizing your agent to withdraw, intravenously provided nutrition and hydration, then they will be able to do so. But only after two physicians have so indicated that the removal of such will not cause you to suffer any additional pain. That’s a critically important point made in Ohio law. Not all states have that. But it is the case here in Ohio. One of the things that I’ve had a lot of conversations with my clients about is particularly with the upshot of COVID. And the use of ventilators was to encourage my clients to insert additional instructions on the legal document, making sure that we have some understanding of what you really do want. For instance, do you want to have a ventilator? Under what circumstances it’s it doesn’t have to be all or nothing, I’m going to leave it totally up to my agent to decide, it’s probably best for you to give some added instructions to your agent so that they have a clear understanding of what you would likely one in the event that you cannot make these decisions for yourself. So it’s important for you to think about end of life and think about under those circumstances, what kind of guidance you want to provide. I think for most of my clients, what we really are after is making sure that we do not suffer any pain and that whatever steps are taken, they’re taken with the purpose of alleviating pain to the extent possible. Even that brief comment in the instructions can be helpful, but you may have other unusual Well, items that you want to place within the instructions. I do have clients, for instance, who have certain beliefs as it pertains to blood transfusions. Under those circumstances, it would be appropriate to set them out in the additional instructions. So, the healthcare power of attorney is where you’re designating other individuals to make medical decisions for you, but only if you cannot. That is much different than the HIPAA authorization, where you’re designating individuals to be able to talk to your doctors and simply get information.

Now, the third document, again, is totally different. It’s called a living will. Now truthfully, a living will is in many respects, not a will at all, it is totally different than your pour over will, that you signed as a part of your revocable trust estate plan. The pour over will deals with who are beneficiaries of your probate estate, a living will is talking about what are your wishes, as it pertains to the end of life. In Ohio, a living will only comes into play once two physicians have made a determination that you are in one of two conditions. One, they have determined that you’re in a permanently unconscious state. That is that you have no higher brain function. Or to you are deemed to be in a terminal condition, which is irreversible, incurable and is likely to result in an imminent death. If two physicians determine that you are in one of these two conditions, a permanently unconscious state or that your terminal, then and only then can you authorize in advance your attending physician to withdraw all extraordinary measures that are being used to keep you alive. And even to go so far as to issue a DNR order, indicating that you do not want any CPR invoked at all. The living will is an Advanced Directive, we’re going to allow you to sign that document at the time you sign your estate plan. And you are basically saying in advance. Look, if I’m permanently unconscious, if I’m terminal as defined by Ohio law, that I do not want any extraordinary measures being used to keep me alive and I would like to have a do not resuscitate order placed in my chart. If that occurs, if that happens, and you have a living will in effect, the medical team will acknowledge that now there is one additional step if you wish to also authorize your medical team to withdraw any intravenously provided nutrition and hydration. If you’re in a permanently unconscious state or a terminal condition, you must initial the box on the living will form in order for it to include the physicians right to remove the intravenously provided nutrition hydration, as long as that physician determines that the intravenous provided nutrition hydration, is not alleviating any pain, that is that the removal of it will not cause you to have any additional pain. Critically important. Now what’s really important to understand is how the living will interacts with the healthcare power of attorney. A lot of people have questions about this and it’s important to be clear. First and foremost. It’s important to understand that the living will in Ohio always trumps the health care power of attorney. What does that really mean? Well, what it means is from a legal perspective, if you signed a living will and powering your physicians to withdraw extraordinary measures or to not Begin any extraordinary measures, and your healthcare agent disagrees. For whatever reason, even though the health care agent is empowered under the health care power of attorney, the living will that is the physicians determination is going to control from a legal perspective.

Some people therefore choose not to have a living will. That is, they’re going to let the decision be made by their agent under their health care power of attorney, I would say in our office, probably 90%. Sign a living will that is they don’t want their healthcare agent to wrestle with this end of life decision. They don’t want their spouse or their children to have to wrestle with this issue. Basically, they’re saying in advance through an Advanced Directive, that look, if I’m permanently unconscious, truthfully have no higher brain function. Or I’m in a terminal condition, incurable death is likely to be imminent, it’s irreversible, then go ahead and allow me to die naturally. That’s what most of our clients say. But not everybody. It’s important for you to give some thought as to how you want to structure the living will and the healthcare power of attorney. Most of our clients sign both, but not everybody does. It’s also important to understand that the HIPAA, or the healthcare power of attorney, or the living will, are not a DNR order.

A DNR order is an order that is issued by a medical practitioner, a physician, not a lawyer. There may be circumstances under which you can have a conversation in advance with your physician. And you can request to have a DNR order placed in your chart, so that if you do a rest, there will be no CPR invoked. Perhaps due to your age, or your illness that you’re inflicted with, it might be appropriate for a DNR order to be placed in your chart. That is not something that lawyers are involved in with respect to estate planning. That is something that is significantly different. Now, just remember also, it is important within the healthcare power of attorney, and oftentimes also in either your will or your financial power of attorney, that in those documents, we nominate somebody to be your guardian. If, for whatever reason, we need to go to probate court and get a guardian. These days, we oftentimes will place that nomination of the individuals to be your guardian, in your healthcare power of attorney as well as your financial power of attorney as well as your Will we want it to be consistent throughout. We’re hopeful that based upon the estate planning that we’ve done, that a guardianship would never be necessary. Having said that, we do have a backup plan in the event that a guardianship would be necessary. Well, I hope you have found this episode to be of interest, I hope that it will give you some clarity and some confidence with respect to going forward. Recognizing that you’ve got a plan in place was selected individuals to handle any kind of medical circumstance that may arise including an end of life decision for you, you can probably see how critically important it is to make sure that you have these documents in place. So does your spouse and also hopefully you can now begin to see why every one of your children and grandchildren once they turn 18 should have a basic plan put in place. That includes a HIPAA authorization, a health care power of attorney and a living will. Well thanks for being with us today. I enjoyed our conversation. And until the next time, have a great day. And by the way, happy New Year.

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