Should Health Care Documents be part of an Estate Plan?

estate planning

By Attorney Truman Scarborough

In addition to documents dealing with property issues such as Wills, Trusts, and Powers of Attorney there are documents called “Advance Directives” that address potential health care issues. They help assure you will receive the medical care you desire and lessen the burden on the family. There are several different health care documents:

  1. Designation of Health Care Surrogate: This gives the person you select the authority to make medical decisions for you if later you become unable. The person you designate has the right to change doctors for you, move you to a different hospital, agree to medical procedures, etc. It also includes: 1) making anatomical gifts after you are gone and 2) withholding or withdrawing life-prolonging procedures, if you do not have a Living Will (see #3 below). If you do not appoint someone as your health care surrogate, Florida Statutes determine who will act as your ‘proxy’. However, this may not be the person you would want to make health care decisions.

Florida Statutes require the surrogate give instructions to medical providers just as he/she believes you would want. Only if it is unclear what you would desire under the circumstances, can your surrogate give directions that he/she believes are in your best interest. It is therefore important to discuss these issues with your surrogate so he/she will know how you feel. In addition, you should determine if your surrogate is emotionally able to make these decisions.

If you live part of the year in another state, you may want to have a Health Care Surrogate under the laws of that state as well. Health care providers in the other state may not readily accept a form which they have never seen before.

  1. The Federal HIPAA Form: Under the Health Insurance Portability and Accountability Act (HIPAA), health care providers are subject to civil and criminal penalties if they release medical information without your prior authorization. The persons you have given the authority to make medical decisions under Florida’s Health Care Surrogate Law will need a Federal HIPAA form to obtain medical information.
  2. The Living Will: It is your order (if you are later unable to give instructions) to withhold or withdraw life-prolonging medical procedures if in the future you: 1) are in a terminal condition, 2) have an end-stage condition, or 3) are in a persistent vegetative state with no chance of recovery. These determinations can only be made by your attending physician and another physician after separate examinations. In the Living Will you can specify which procedures you wish to have withheld, including nutrition and hydration. These options should be discussed with your doctor.
  3. The Do Not Resuscitate Order (DNR): Unlike the Living Will, which can be signed by a healthy individual; the DNR is signed by a doctor after he has determined the patient has a terminal condition, end-stage condition, or is in a persistent vegetative state. This is frequently used when a terminally ill patient is released from the hospital. With a DNR, Emergency Medical Responders (EMS) will withhold cardiopulmonary resuscitation when responding to an at-home patient suffering cardiac or respiratory arrest. It is printed on yellow paper and placed on the patient’s bed or refrigerator.

 

For further information on estate planning, you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.

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