A health care directive (“HCD”) is another integral document you should have as part of an estate plan. This document is a tool that gives you the ability to name a trusted individual(s) to make health care decisions on your behalf when you are unable. If you are ever incapacitated, this document can be used and should avoid the need to set up a guardianship. A guardianship is a court process where someone is named to step in make decisions for you regarding your healthcare but also your overall personal well-being if the court determines you are no longer able to yourself. By setting up a HCD, you get to choose who you want to be in charge of your healthcare and how you want your healthcare wishes carried out.
You have probably heard a variety of terms that reference a document giving someone the authority to make healthcare decisions for you including: living will, health care declarations, durable power of attorney for health care, medical power of attorney or other written advance health care directives. In 1998, Minnesota law changed so that people could use one document for all their health care instructions (i.e. a health care directive). If you have health care documents created prior to 1998, you may want to review those documents to ensure they meet the legal requirements of the new laws.
Minnesota statute has provided a suggested form to use for your HCD. However, this form is not mandatory and many organizations have created their own variations of this document. The challenge for you is to use a document that meets the legal requirements and meets your personal needs.
The Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) limits the circumstances where health providers can provide access to individuals identifiable health information. Many of you probably recognize the term HIPPA sine the paperwork you get each time you go to the clinic or doctor’s office include references to it or they give you the HIPPA privacy information statement. It is important that your HCD addresses HIPPA so it is clear the person acting on your behalf for health care behalf has full access to your medical records.
In general under Minnesota statute, your health care agent acting under your health care directive has the authority to do the following:
- Make health care decisions on your behalf,
- Act only if you do not have decision making capacity,
- Give consent, refuse consent or withdraw consent to your care, treatment, service or procedure to maintain, diagnose or treat your medical condition,
- Receive, review and obtain copies of medical records and to consent to the disclosure of medical records, and
- Act in good faith regarding intrusive mental health treatment.
Generally, the HCD is valid unless you revoke it by destroying the health care directive instrument, execute a new document that expressly revokes any prior documents or verbally express your intent to revoke if certain conditions are met.
Many people get a HCD confused with a “do not resuscitate” and/or “do not intubate” order (“DNR/DNI”) or a Provider Order for Life-Sustaining Treatment (“POLST”) form. Both of these forms are doctor’s instructions and should not be a substitute for a HCD.
It is important to have a HCD, even if you are married. As you can imagine, it becomes even more important where you have a non-traditional family arrangement or second marriage. It should be clear who you want to make health care decisions on your behalf if you are unable. It is a simple document that is key to any estate plan.
Please send me an email at firstname.lastname@example.org with any topic suggestions or requests you may have. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.