Living Wills, Health Care Surrogates, HIPAA, and DNRs
Written by Jim Worthington on August 26, 2018
Today’s article starts with living wills and health care surrogates. This article thus completes the discussion that began two articles ago of the full set of documents for the estate plan everyone needs: a will, a revocable trust for some, but not all, as explained in Do I Need a Trust or Is a Will Enough?, a power of attorney, and a health care directive.
A health care directive includes a living will and a designation of health care surrogate. The living will part states one’s preference for end of life care. The designation of a health care surrogate names someone to make decisions for a person, called the principal, when the principal lacks decisional capacity. The Kentucky Attorney General publishes a living will packet for consumers to use that includes both a living will and a designation of a health care surrogate. However, the AG’s form does not include a HIPAA release.
HIPAA stands for the Health Insurance Portability and Accountability Act, which became law in 1996. Its Privacy Rule went into effect in 2000, when the Secretary for Health & Human Services promulgated final regulations. Anyone who has been to a drug store and seen the shielded cubicle for consultations with the pharmacist has seen the Privacy Rule in action. That rule also restricts the ability of health care professionals to release protected health information to a person’s health care surrogate. Without a HIPAA release, the health care surrogate may not be able to consult with doctors as needed to make an informed decision on the principal’s behalf.
This omission can be cured in two ways. One is to have a separate HIPAA release that authorizes health care providers to share protected health information with the health care surrogate. Another is to modify the standard form and include the HIPAA release in the form itself. That’s the better practice in this author’s opinion.
One other observation is in order. The fact that something as seemingly straightforward as a health care directive involves federal health care law is just one good reason why estate planning should not be a do it yourself project.
Another important fact to know about health care directives is that they do not affect what happens when a paramedic or other EMS provider is called to the scene. Those persons will only honor a particular DNR form. Anyone who has a serious desire not to be resuscitated should sign one of these and wear a bracelet announcing that fact.
Taken together, the full set of documents comprising a basic estate plan protects one in case of impaired health, financial incapacity, and death. None of these is pleasant to think about but planning ahead for them provides great peace of mind and is truly a gift to one’s family.