We all have our own personal nightmares. Scenarios that conjure up dread, that keep up us at night, or trouble our thoughts when we contemplate the cruel twists and turns of life. Often, we are able to set those despairing thoughts aside, and continue to move forward. And sometimes those scenarios become our reality. Are we ready to face those harsh realities? Have we properly prepared for those painful eventualities?
Here’s one of those harsh realities that has come up recently in my personal and professional life. The scenario is one common to many. Your loved one – your partner, spouse, possibly your parent, or a widowed aunt or uncle, becomes disoriented, incoherent, seems disconnected from reality, babbles nonsense. They clearly aren’t themselves. There is no outward manifestation that they are sick. But they’ve stopped eating and drinking. They refuse to sleep. They wander around manically, singing nonsense, and babbling. Within their incoherent babbling, you hear words that cause you to be concerned that your loved one might be at risk of harming themselves or others. You fear for their safety. So, you call the paramedics and your loved one is rushed to the hospital.
When you arrive at the hospital, the medical personnel determine that your loved one is not in their right mind and, therefore, can’t speak for themselves. But as the ambulance drove away, you remembered that your loved one executed a Power of Attorney (“POA”) and you had the foresight to grab it on your way out the door. Since you are the closet living relative, and you have the POA in hand, you presume that you will be able to speak for your loved one, to make medical decisions on their behalf, to ensure that they receive the appropriate medical care, and – if necessary, see to their receiving suitable long term care. You are shocked when the hospital advises you that the POA does not authorize you to make any medical decisions for your loved one. And worse, HIPAA does not allow them to provide you with any personal health information regarding your loved one.
Our loved one needs medical care, possibly psychiatric care. They need it now. But they are not in their right mind. They are unable to sign any documents at this point. Could there be any worse time than in the throes of a medical crisis to discover that you do not have the proper legal documents to care for your loved one?
Two questions arise: (1) what are the right legal documents to have in such a scenario, and (2) what can be done in this case, where you don’t have the right legal documents?
What are the right legal documents to have for such an eventuality?
As Benjamin Franklin wisely put it long ago, “An ounce of prevention is worth a pound of cure.” In the present scenario described above, what legal documents will permit you to see to your loved one’s care without having to go through a lengthy, public Court process? The critical documents needed in this scenario are the following:
- Healthcare Power of Attorney or “HCPOA”. An HCPOA allows the person designated by the Principal, typically referred to as the “Agent” (sometimes called a “healthcare proxy”) to make medical decisions for the Principal, should they become incapacitated or mentally incompetent.
- Advance Health Care Directive or “AHCD”. An AHCD (sometimes called a “Living Will”) gives the Agent similar powers of decision as the HCPOA. But this directive will also articulate your loved one’s preferences when death is virtually inevitable, and what type of heroic efforts to perpetuate life they will or will not agree to. The AHCD authorizes you, as the Agent, to carry out the wishes of your incapacitated loved one.
- HIPAA Release. The Health Insurance Portability and Accountability Act of 2003, known as “HIPAA,” created privacy protections for medical information which prevents hospitals and physicians from providing your personal health information to anyone that is not listed in a signed HIPAA Release. This release allows the hospitals and physicians to disclose to you, the Agent, the personal health information regarding your loved one, which will in turn, allow you to fulfill your duties under the HCPOA and AHCD.
A properly drafted Revocable Living Trust Estate Plan will include these three documents: the HCPOA, the AHCD, and the HIPAA Release. With these documents the person you designate to act as your Agent will be able to execute your preferences for medical treatment, long-term care, and terminal medical conditions.
When your loved one is rendered unable to manage their affairs for themselves, and these critical legal documents do not exist, you may face an ordeal nearly as debilitating as the disabling medical condition itself. It’s a legal process commonly called Living Probate, and for those who must endure it, it is often a living nightmare. But that discussion will have to be left for another day and will be covered in my next blog post.
Learn how you can be better prepared! Take the first step this coming Saturday at 10am. Click on this link to attend my FREE SEMINAR in La Cañada Flintridge on Saturday, July 20, 2019.