Power of Attorney for Healthcare and Property

Power of Attorney for Healthcare and More

The majority of people who meet with an estate planning attorney focus on the question: “What happens if I die?” However, it is also important to ask: “What happens if I am alive, but cannot make decisions for myself?”

In answering the second question, it is important to consider this in the context of your health care. Under Illinois law, if you have not executed advance care directives, that question is answered for you.  And is often the case, leaving the decision to the legislature generally leads to a poor result.

Health care surrogates, that is, the person entitled to take control and make decisions for another, are dictated based on their kinship. For example, children of an aging parent, where no spouse exists, are grouped together. By executing health care directives, you can take control over your health care and ensure the person you want to carry out your wishes is legally authorized to do so.

Health care planning utilizes three main documents:

1. Power of Attorney for Health Care
2. Living Will or Advance Care Directive
3. HIPAA Authorization

Additional documentation may also be advisable. If you have not made decisions about your health care choices, or have not put those decisions in writing, contact an attorney today.

Living Will Declaration/Advance Care Directive

Executing a Living Will, or Advance Care Directive is a very important part of an estate plan. This document states your wishes in the event that death is imminent. By executing this document, you can achieve the following:

• Indicate Your Wishes to Not Use Life-Sustaining Treatment
• Relieve Health Care Agent of the Need to Decide for You
• Provide Safety Net if Health Care Agent Refuses to Act
• May Be Effective in Jurisdictions Where Power of Attorney is not Recognized

It is important to use the statutory form for your Living Will, but beware the form contemplates keeping a feeding tube. Make sure you consult an attorney to have the form prepared for you.

HIPAA Authorization

It is important to execute a global health authorization. Under HIPAA (The Health Insurance Portability and Accountability Act of 1995), doctors and other medical professionals may only release your private health information (PHI) to “covered entities” and they may not release your PHI to individuals without your prior consent. A HIPAA Authorization provides that you are authorizing certain named individuals to communicate with the medical professionals working for you, and to have access to your medical records, and other private health care information.

By executing this document, you will achieve the following:

• Grant certain individuals access to your doctors
• Grant certain individuals access to your medical records
• Grant certain individuals access to information related to your billing and insurance

Without this document, your family may be prevented from accessing your PHI. This could hinder their ability to assist in making decisions related to your health and life-altering decisions  should you become incapacitated and unable to make these health care decisions for yourself.

It is important that anyone you have named as an initial or successor Agent or Trustee is authorized to communicate with your doctors to ascertain your competence. Failing to give this authorization could result in expensive, time-consuming and onerous trips to guardianship court.