Advanced Healthcare Directives: Avoiding the “Lifetime Probate”

Many people have at least one clear goal when they come to an estate planning attorney: avoiding probate. You worked hard your whole life and now you want to see your property given to your loved ones without the hassle and cost of a lengthy and expensive court process. (For readers who are unclear on the probate process, read our article, “Estate Planning with a Will or a Trust: Avoiding Probate and More.”) But while this probate upon death is worth taking the time to avoid, there is an equally-if-not-worse process of a living probate that most people are completely unaware of.

What we are referring to is the distinction between legacy planning and incapacity planning. Legacy planning involves the disposition of one’s assets after death. Incapacity planning addresses one’s medical and financial needs during periods of incapacity. Incapacity is a legal designation. It means that an individual is unable to make decisions for him or herself. Here, it is helpful to picture the unwelcome scenario in which one is rendered incapacitated.

 The family is gathered, perhaps at the hospital. The individual in question is unconscious. The doctor comes in and gives two or more options on how to proceed, one of which might involve a high risk of death, an extended time on life support, or both. Who makes these decisions? What guidance does that decision-maker have to make those decisions? In the absence of healthcare directives, the family is left to make this decision in what is very possibly the worst moment of their life and live with the consequences. This puts an enormous amount of stress on the decision-maker and the family as a whole.

Having healthcare directives in place can avoid such a catastrophe. The term “healthcare directives” can mean many things, but here, we will refer to 4 key documents that form a comprehensive and sound plan for incapacity.

Healthcare Power of Attorney

This document sets forth a proxy, surrogate, or agent that can make healthcare decisions for the incapacitated. Now is the time to clear up a common misconception. An agent appointed in a Healthcare Power of Attorney does not take away control of healthcare decisions from the individual who created the Power of Attorney, also known as the principal. The agent only is given license to act in the event the principal cannot make decisions for him or herself. 

The agent can hire and fire healthcare providers, consent to or decline recommendations for treatment and procedures, make decisions about pain-management, and manage ancillary services including long-term placement. However in much the same way that a trustee is appointed an agent but must follow the rules of the trust, so the agent named in the healthcare power of attorney must follow the rules and guidance laid out in a document: the Living Will.

Living Will

A Living Will (also called an Advanced Directive) deals with a situation where there is an end-of-life issue. In other words, it comes into play in circumstances where there is no hope for recovery, usually as determined by a physician. If such a circumstance arises, the living will can address the patient’s preference for artificial means of life support, namely ventilators and feeding tubes.

A living will must be distinguished from what we commonly hear called a Do Not Resuscitate Order, or a “DNR.” A DNR is operative where a patient ceases respiratory or cardiac activity, and essentially orders that no CPR will be given in that event. A living will addresses a less acute and more prolonged end-of-life issue. Further, a Living Will does not become effective any time a ventilator is needed. In the recent COVID-19 pandemic, for instance, many ventilators were used but they were used with the intention and expectation that it would be a short-term treatment and that the patient would recover and no longer require it. Such an instance would not give rise to a Living Will or a Healthcare Power of Attorney because the circumstances were not end-of-life ones.

HIPAA Authorization

The Health Insurance Portability and Accountability Act (HIPAA) is essentially a privacy rule. It prevents anyone from having access to a patient’s medical records. However, in the event of one’s incapacity, this may hamstring those who the patient would actually want to be involved from knowing anything about the treatment. 

An authorization with listed individuals allows those that the patient wishes to be aware of the treatment to be gain access to otherwise private information. While an individual would certainly want the decision-making agents from the healthcare power of attorney to be listed on the HIPAA authorization, he or she may make this broader than those agents and allow anyone they would like to know what is going on the event of his or her incapacity.

Anatomical Gift Authorization and Declaration of Disposition of Last Remains

What happens to your organs or your remains in the event you pass away? Hospitals are required to inquire about organ donation with their patients, but if the patient is incapacitated, that answer cannot be given. If one desires their organs donated, this generally requires an advance directive. If near death, and the hospital has no record of a decision about organ donation, the hospital will ask the next of kin to donate organs of patients. Many have strong feelings one way or the other on this. Therefore, a directive is critical to effect those desires and free family members from making an uncomfortable decision.

A Declaration of Disposition of Last Remains, also called a Right of Sepulcher in some states. An individual may have a strong desire as to whether they would like to be buried or cremated, cryogenically preserved or have their body donated to science for research. A directive for this is critical to see this desire fulfilled and to eliminate ambiguity.

Beyond An Inheritance

Most think of estate planning as leaving an inheritance to their loved ones. To be sure, this is an important priority when you plan your estate. But at its core, this goal is about continuing to minimize difficulty for those we protected and provided for our whole life. Financial difficulty is one such type of hardship. The stress of having to deal with perplexity, uncertainty, and legal “red tape” when a loved one falls victim to a health emergency is another. A comprehensive estate plan has well-drafted healthcare directives to avoid this.