You can’t escape news about the Coronavirus right now. Television, Facebook, and alerts on your phone update you all day long with news of the spreading virus. While there isn’t any need for a panic, the recent news is a good reminder that one of the best ways to prepare for sickness is the often-overlooked act of getting your basic healthcare documents in place. Your estate plan should cover situations in which you are not able to act on your own behalf in making medical decisions. This kind of incapacity planning should include a health care power of attorney, a living will, and a HIPAA authorization. In the event you become unable to speak for yourself, you want to make sure your personal wishes concerning health care decisions are honored.
In Louisiana, if you are unable to consent to medical treatment because of a serious accident or illness, a court may appoint someone to act for you. This will not necessarily be the same person that you would have chosen to act on your behalf; it will reflect the court’s best guess about who is the best qualified to make the decision for you. If a court has not appointed someone to act for you, your spouse may consent to medical treatment. If you are not married or if your spouse is unavailable, the law allows the following people to consent in this order of priority: 1) your adult children; 2) your parents; 3) your siblings; 4) other relatives. If there is more than one person in a category, then the decisions will be made by a majority vote. It is easy to see how this could cause problems within the family if all of your loved ones do not agree as to which course of action is in your best interest.
There are documents you can have in place to guard against this kind of family conflict and against a court choosing your decision-maker for you. The law allows you to execute a health care power of attorney in order to designate the proper individual to make health care decisions on your behalf if you become incapacitated. This person is called your agent. It is also important to name a back-up, or successor, agent in case the first person you have named is unable or unwilling to serve when the need arises.
The law also authorizes you to make a declaration, commonly known as a living will, instructing your physicians to withhold or withdraw life-sustaining procedures when you have been diagnosed as having a terminal or irreversible condition. A living will gives specific instructions to your loved ones and to your doctors about what kind of medical treatments you do or do not want administered. This document helps to ensure that your personal dignity and your fundamental right to control your own medical care are respected even after you are no longer able to actively participate in the decision-making process.
The final health care document you should have in place is a HIPAA authorization naming the people that you want to have access to your protected medical records. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent written authorization from the patient, a health care provider cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The penalty for failure to comply with the HIPAA rules is severe, so your loved ones may have difficulty getting crucial information from a hospital or other health care provider if you do not have a HIPAA authorization granting them access to your records.
Providing your loved ones with these health care documents can save them the stress of having to guess what medical decisions you would want made and who you would want making them. You should work with an experienced estate planning professional to ensure that these documents meet the requirements of Louisiana law and that all aspects of your incapacity plan have been considered.
The information provided is not intended to be legal advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.
Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.