In this episode, Attorneys Chrissy Knopke and Annie Rogers discuss three important legal documents that everyone should have: a healthcare power of attorney, a HIPAA authorization and a living will. They explain the differences between the three, what they each authorize and why it’s essential to have them before a medical emergency or serious illness occurs.
A Matter of Trust, hosted by Creative Planning Attorneys Annie Rogers and Christina Knopke, is a thoughtful, informed discussion about ideas, trends and developments in estate planning. Our mission is to educate and inspire people to make better financial choices through knowledge, tools and strategies that ensure a more prosperous future.
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Chrissy Knopke: Welcome to Creative Planning’s A Matter of Trust. I’m Chrissy Knopke and I’m here with my colleague and friend, Annie Rogers. We’re both attorneys here at Creative Planning. And today we’re going to discuss healthcare powers of attorney and the documents that essentially go with a healthcare power of attorney to ensure you have the right people nominated to make medical decisions for you if you ever have a medical emergency.
So, there’s actually three documents that we’re going to reference today: a healthcare power of attorney, a HIPAA authorization, and then a living will or advance directive. So, Annie, do you want to tell us about the healthcare power of attorney?
Annie Rogers: Sure. So the healthcare power of attorney, I think most people are aware of what this is and what it’s used for, but this is the document that’s necessary for someone to be able to make healthcare decisions for you if you’re unable to make the decisions yourself. So this is the document that says, “If I can’t make my decisions, I want my wife to do it. And if my wife can’t do it, I want my child to do it,” or whoever you trust to make sure that decisions are made when there’s a medical emergency or if you’re incapacitated that are in line with what your wishes are. This can go to whether they’re authorized to give you medication for pain relief, even though things like morphine or things like that can be considered addictive. You can say my intention is that I want to return home, but if I can’t, they can get me hospice or long-term care.
Chrissy: And a big misconception out there amongst a lot of our clients is that they think their spouse can automatically make those decisions without a healthcare power of attorney. And that’s just not true anymore in light of HIPAA, which we’re going to talk about in a minute. If you don’t have a valid healthcare power of attorney signed, nominating your spouse, nominating your adult child, nominating these people to make decisions for you, the only way they’re able to control your medical situation no matter how they’re related to you, is by petitioning a probate court to become your guardian. Guardianship is the order that would be needed to make those medical decisions. So this alleviates the need for your spouse to hire an attorney and petition the court and go through that really time-consuming step when you’re needing somebody to step in and make decisions for you that you trust.
Annie: True. And along with that, HIPAA is the Health Information Portability and Accountability Act and that passed in 2004. And that is a law that changed people’s ability to get access to information for their adult children, for their spouses. You have to give them authority to talk to doctors and get medical information.
Chrissy: So someone arrives in an ambulance from work. They had a heart attack and their wife frantically is running in the emergency room saying, “Has John Doe been admitted here?” And they’re saying, “I’m sorry, ma’am. We can’t release that information to you. It’s protected healthcare information.”
Annie: Right. They can’t even tell you if they’re there, which is super frustrating if there’s some sort of car accident or medical emergency. So it’s really important if you had healthcare powers of attorney done before 2004 that you get them updated and that they now have the HIPAA language in them. But we also here at Creative Planning do a separate HIPAA release so that the people that you’ve designated to get information have the ability to do so because you might have your spouse making decisions that you want your kids to know.
Chrissy: Right. You want your kids to be able to go to the hospital or call a doctor and get some information if something happened to you.
Annie: And then we also add a phrase on there that anybody acting as your successor trustee or financial power of attorney, you could also talk to doctors to get those two doctor’s notes that are often required to take over handling financial things. So this is a really important document to have, as well.
Chrissy: The last document that we typically do at Creative Planning when we are handling healthcare decisions is what’s referred to as a living will. A lot of states refer to it also as an advance directive. And it actually is pretty much a state-specific doc. A lot of states have moved towards a document that is very generic in saying that if you’re incapacitated, in a permanent vegetative state, terminal illness, incurable condition, or your death becomes really immediate, meaning within a few days, that your healthcare power of attorney, once you have signed that form can now remove life-prolonging measures. Other states have a more detailed advance directive, and Annie will talk a little bit about that.
Annie: Right. Some states have where you have to initial, like, in this scenario…
Chrissy: If I’m in a permanent vegetative state, I don’t want artificial nutrition or hydration.
Chrissy: I don’t want to be kept alive. I don’t want pain medication. Missouri is a state that goes as far as you picking if you want CPR, if you want antibiotics.
Annie: Chemotherapy. All these different things.
Chrissy: So different states have different actual advance directives, but ultimately it’s a document that you are signing to make sure your healthcare power of attorney knows that at end of life what you would want and hopefully you’ve picked people that are going to honor those wishes.
Annie: And I always talk to my clients about how important it is to talk to the people that you’ve named. Have a conversation with them about different scenarios of what your wishes are because that’s really going to go a long way. And I think it alleviates a lot of the guilt and unsure-
Chrissy: Right. Of removing life support if that’s the decision that has to be made.
Annie: Right. And it’s important to note that a living will is different than a DNR. A DNR is a Do Not Resuscitate. That’s a document you get from your doctor and that is something people that are 95 in the nursing home might have next to their bed. So that if they pass away that when the ambulance comes, they’re not going to try to-
Chrissy: Resuscitate them.
Annie: Right. Or if you have your own hospice care and you have terminal cancer, that’s a different situation. And that’s not something anybody needs now until they’re at that point where that’s what their wishes are.
Chrissy: So ultimately, everyone aged 18 or older in any state they live in needs these three documents: a healthcare power of attorney, a HIPAA authorization, and a living will. Sometimes they’re combined into one and sometimes they’re not, but we really hope that you reach out to your attorney and make sure that your documents are up-to-date or if you need to change anything that you take care of that.
Annie: Thank you.
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