Top Five Deficiencies in Advance Health Care Directives

Top Five Deficiencies in Advance Health Care Directives

I often tell clients when drafting their estate plans that the advance health care directive (AHCD) is the more important than their will and trust. This is because the decisions we make in an AHCD have to do with decisions made for us while alive and spell out the quality of life we want. That said, I am shocked and bewildered by the amount of DIY and attorney-drafted AHCDs I view that are fundamentally lacking in provisions to protect the client’s quality of life. Here are the top five deficiencies I find in the AHCDs that come across my desk:

1. No HIPAA provisions

So what the heck is HIPAA? HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. The primary goal of the law is to make it easier for people to keep health insurance, protect the confidentiality and security of health care information and help the health care industry control administrative costs. Sounds great, right? But a primary effect of the law is that family members and loved ones can be kept in the dark about important information, such as what hospital you are located at, what medical condition you are suffering from, and what kind of treatment you need. You can avoid this with a provision in your AHCD that specifically allows the agent(s) you name to have access to information that would otherwise be protected by HIPAA.

2. Stale AHCD

A stale AHCD is one that hasn’t been updated in awhile and therefore won’t be honored by health care providers. There’s no hard and fast rule for when an AHCD goes stale, but they do. An AHCD from 3 or 4 years ago will usually be honored by medical providers, but not always. An AHCD from 10+ years ago is much less likely to be honored. I usually recommend that clients update their AHCD every other year. This can be done with a simple one-page recertification instead of redrafting the whole AHCD.

3. No conservator of the person named

You’ve named your health care agent because you trust them to make important health care decisions for you. That’s why I’m always surprised to find an AHCD that doesn’t include a provision naming a conservator of the person. A conservator of the person is the person who will take care of you if you should become permanently incapacitated and unable to care for yourself. This person is supervised by the probate court and makes sure that your needs are met on a day-to-day basis. The reason it is so important to name a conservator of the person in your AHCD is to make sure the person YOU choose ends up as your conservator. State law allows for most family members to apply to become your conservator in the absence of such a provision. This is your opportunity to make sure the person you want is taking care of you should you wind up in a coma, with dementia, or with other severe disabilities.

4. Doesn’t work with Trust and Financial Power of Attorney

Times of crisis are the worst times for uncertainty. Most estate plans I see don’t clearly delineate the powers of the agent for health care, a trustee, and a agent under a financial power of attorney. This is nuts. A trustee should know what the limits of a agent for health care’s ability to declare that the trustor is incapacitated. An agent for health care should know if and when he/she can ask a trustee for money for medical bills. All of your estate planning documents should be custom-crafted to work together to avoid any confusion regarding who gets to choose what when the tough decisions need to be made.

5. No home care provisions

There comes a point where everyone wants to go home. Some AHCDs don’t let the agent know when you want to go home. Many people would prefer to go home as opposed to going to hospice. Make sure your AHCD clearly spells out if and when you want to go home.

So there we have it, the five top deficiencies I see in AHCDs on a near-daily basis. These oversights are pervasive in the DIY AHCDs that are sprawled throughout the Internet, but they also appear in many attorney-drafted AHCDs. Take 5 minutes to review your AHCD and make sure these provisions are in there- it could literally save your life.

DISCLAIMER: This blog is not legal advice, nor is it intended to provide legal advice. This blog provides general statements on the law, nothing more, nothing less. Furthermore, nothing in this blog creates an attorney-client relationship with anyone. Period. If you act on, rely on, or otherwise use the information from this blog, you do so at your own risk. We at Toeppen Law recommend you speak to experienced legal counsel when making any important legal decisions.


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