Most people think estate planning only means planning how their money and assets will be distributed to their loved ones when they pass. An often overlooked aspect revolves around a simple question: who would be able to speak for you in a medical emergency?
Unfortunately, accidents and unexpected illnesses are a part of life. So when someone becomes incapacitated and cannot make medical decisions on their own, what happens?
Many California residents mistakenly assume that if something happened to them that left them unable to communicate their medical wishes, that their spouse, parent, or other family member would be able to make a decision for them.
However, the Health Insurance Portability and Accountability Act (HIPAA) places restrictions on who a patient’s medical information can be shared with. Doctors may share information, but for liability reasons, they are extremely cautious about releasing medical information without clear authorization.
That is where advance health care directives come into play.
These estate planning documents give individuals the power to dictate their health care wishes in the event of a medical emergency.
What Is an Advance Health Care Directive in California?
An advance health care directive is a legal document used for incapacitation planning. It lets a person, the principal, give another person, the agent, the authority to make medical decisions on their behalf.
These documents also allow a person to leave specific instructions about medical treatments, as well as end-of-life preferences around life support and resuscitation.
Having these documents in place helps avoid confusion and spares your family the burden of additional stress.
Clients often ask us what happens if there is no health care directive in place.
Your spouse or loved ones may be consulted, but there is no single line of authority. If there is a disagreement between a spouse and a parent, or an adult child, that can create more problems. If the disagreement cannot be resolved, a legally appointed conservatorship may be necessary.
However, that is a process that takes a significant amount of time. While doctors often defer to the spouse when there is uncertainty, disagreements between family members can complicate medical decisions and create additional stress.
When Does an Advance Health Care Directive Take Effect?
When the agent assumes decision-making power depends on the individual’s preference.
Under the California Probate Code, advance health care directives are “springing” documents by default. That means the agent’s power only becomes effective when specific conditions are met. This is usually when a patient’s primary physician deems them clinically incapacitated and unable to make or communicate their own medical decisions.
However, in California, individuals can also choose to immediately give an agent power, without waiting for incapacitation. This choice is often used by aging spouses or parents who want their partner or adult child to handle the details of their care.
It’s also common for individuals to include specific instructions in their documents for certain situations. For example, withdrawing life support when a situation is terminal. Conditions around religious beliefs are also common, like consulting with a religious advisor before making a decision.
What Decisions Can a Health Care Agent Make?
One common concern we see among our estate planning clients at the Law Office of Vidhya Babu is that they are giving away their decision-making power by creating an advance health care directive.
We reassure our clients that they will always retain control over their own health care as long as they are able to speak for themselves and are aware of their situation.
It’s helpful to think of advance care directives as more of a safety net that only is needed when they are unable to speak for themselves.
With that said, it’s still important to understand what decisions a health care agent can make.
The most important power the agent has is the ability to consent to or refuse treatments on the principal’s behalf. Leaving specific treatment conditions in your advance directive ensures that the agent will make decisions according to your wishes. Individuals often leave their preference for situations involving life support, resuscitation, pain management, and organ donation.
Agents also gain the authorization to speak with your doctors and access your medical information.
This is important, because under HIPAA, medical privacy is strictly protected. Your spouse or other loved ones will likely not be granted access to your own personal health information unless they are specifically authorized by an advance health care directive.
Understanding HIPAA and Medical Privacy
The federal government introduced HIPAA in 1996 to protect sensitive health data of Americans from being disclosed without their consent.
A large focus of HIPAA’s privacy rules is on what is called “Protected Health Information” (PHI). PHI includes all the data that a medical provider has about a patient: their diagnoses, treatments, test results, and insurance information. It also includes any other types of medical data that can be used to identify a person.
Under HIPAA, doctors tend to err on the side of caution when it comes to sharing information about a patient’s medical status with another person, even if that person is a spouse or family member. Yet to make decisions in your best interest, they will need access to your medical information.
The goal of HIPAA is to protect a patient’s privacy. However, it can make dealing with a medical emergency more difficult when there is no one formally authorized to receive your medical information or speak with your physicians on your behalf.
How Advance Health Care Directives and HIPAA Work Together
HIPAA can limit what information a doctor is willing to disclose to a patient’s family when there is no advance health care directive.
Even if someone has a financial power of attorney, that does not automatically give them the authority to make medical decisions on your behalf.
Today, advance health care directives are the primary legal tool used to designate an agent to make health care decisions on your behalf.
Having this document in place gives your agent access to your lab results, diagnoses, medication lists and insurance information. These are all critical pieces of information that they will need to make medical decisions on your behalf.
Why Advance Care Planning Matters in California
What happens without advance care planning?
In an emergency situation, doctors can provide immediate life-saving care to stabilize your condition, even if you can’t consent. However, once ongoing health care decisions need to be made, that’s where things become tricky.
When it comes to things like high-risk surgeries, continuing life support, or withdrawing treatment, doctors can consult your spouse, partner, or family members. However, that often creates disagreement about what to do.
If your spouse says that you would not want to be kept on life support, but your parents disagree, that creates a conflict that could be entirely avoided by leaving a health care directive. Serious disputes may require a conservatorship to settle, which involves court hearings, and likely attorney involvement.
The simplest solution to this problem is to create an advance health care directive to name someone of your choosing as the person authorized to make medical decisions for you.
Where DIY Advance Directive Forms Fall Short
Under the California Probate Code, the state provides a standardized advance health care directive form. Many Californians use this exact document or other templated documents to legally designate an agent.
However, the issue with templates is that they are not customized for you specifically. A generic form can legally appoint an agent, but it won’t address your specific wishes or concerns.
Many people have specific end-of-life wishes, religious considerations, or feelings about being placed on life support or organ donation. While the California statutory form leaves room for personal instructions, many people find that basic forms do not fully allow them to address their concerns.
Trying to edit a template yourself creates a risk of leaving out important HIPAA-related language, or missing signatures or witnesses to make them legally binding documents.
For many, the best option is to get help from a lawyer who works with advance health care directives, rather than take a chance with an online template.
How an Advance Health Care Directive Attorney Can Help
People choose to work with an advance health care directive attorney because they want to be sure their documents are legally sound and reflect their wishes for treatment.
A lawyer can draft an advance health care directive that is legally sound, properly executed, and tailored to your wishes.
Lawyers are also helpful when there are unique situations, like blended families. They can help you make sure that specific family members or previous spouses are excluded from the decision-making process.
Lawyers can also help you with your overall estate plan, and see that all documents are in alignment.
The Law Office of Vidhya Babu: Advance Health Care Directives Lawyer
Regardless of your age, accidents and illnesses can happen at any time. If you are incapacitated, HIPAA laws around medical privacy can limit who has access to the information needed to make an informed medical decision on your behalf.
Creating an advance health care directive now increases the likelihood that your medical wishes will be understood and respected. It also gives you the power to clearly identify the person you trust most to make critical health decisions on your behalf.
The best time to create or update an estate plan or health care directive is before it is needed.
At the Law Office of Vidhya Babu, we can help you create a customized advance health care directive that outlines your specific wishes, and designates an agent that you trust to handle your medical care. Even if you already have a document in place, it’s smart to revisit every few years to make sure your wishes are up to date.
Contact our offices today for an initial consultation. We can create a plan that communicates your wishes, and puts a trusted person in place as your agent.