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Advance Health Care Directive

An advance health care directive is sometimes referred to as a power of attorney for health care or a living will. These terms are often used interchangeably and may have different meanings to different estate planning attorneys. Most commonly, a power of attorney for health care refers to a document by which a person (referred to as the “principal”) grants authority to another person to make health care decisions for the principal if he/she is ever incapacitated. The common use of the term living will refers to a document by which a person gives instructions related to end-of-life decisions (i.e., when life support should cease).

The advance health care directive combines the terms of both a power of attorney for health care and a living will into one document. In this document, the principal designates an agent (referred to as a “health care agent”) to make health care and personal care decisions on behalf of the principal if the principal is incapacitated. In addition, the advance health care directive includes specific instructions regarding end-of-life decisions, disposition of remains (burial, cremation, etc.), and donation of anatomical gifts. The principal may give additional related instructions in this document or in a memorandum attached to the advance health care directive.

Why is an Advance Health Care Directive Important?

In the absence of instructions to the contrary, doctors are obligated to treat patients in accordance with the Hippocratic Oath, which mandates that a doctor does everything possible to keep a person alive, under any circumstances. While some people choose to give end-of-life instructions consistent with the Hippocratic Oath, many people choose to give instructions to cease life-sustaining treatment if a doctor diagnoses the person as brain-dead. The decision belongs entirely to the person and an estate planning attorney can incorporate just about any instructions that you might wish to include, or no instructions at all (leaving the decision to the discretion of your health care agent). The point, of course, is that an advance health care directive gives you the power to make your wishes clear, whatever your wishes might be.

Another important piece of an advance health care directive is the HIPAA authorization. The Health Insurance Portability and Accountability Act of 1996 placed restrictions on doctors and hospitals on giving out medical records and health care information for their patients without patient permission. A HIPAA authorization states in writing that doctors and hospitals are authorized to give out all (or some) health care information to specific designated persons. This is extremely valuable in the event that you, the principal, are injured and unconscious. This gives your health care agent access to your medical records so that your agent can make informed decisions regarding treatments, diagnostic tests, etc. on your behalf.