Although we don’t always like to talk about our death, this is an event most would agree is inevitable. The certainty of death is probably what motivates most people to create their estate plan BEFORE their passing. Conversely, many people approach incapacity planning with must less fervor and have a devil-may-care attitude. Although your statistical likelihood of becoming incapacitated is less than death, the possibly of incapacity is still quite high. In this month’s newsletter, we will specifically address the legal issues surrounding medical decisions during your incapacity.
My business partners and I thoroughly enjoy teaching classes and workshops illustrating the concepts and concerns surrounding estate planning. So much of what we do is educate our clients about their estate planning options and the implications of their choices. We each have our own individual way of distilling very weighty topics down to more palatable formats. My business partner Dan likes to coat his presentations with a delicate layer of humor. More specifically, Dan commonly illustrates your need for estate planning by chronicling your demise when you are eaten by a bear while camping. Although the JGB attorneys routinely talk about real-world examples of estate planning and administration, I am happy to say that I am not aware of a single client of JGB being eaten by a bear. With that said, I am stealing a bit of Dan’s creativity to further discuss this month’s topic of incapacity medical decisions.
For our discussion, let’s say you are out camping in one of Virginia’s beautiful parks and are fast asleep in your tent after a day spent in nature. Unbeknownst to you, a vegetarian-pacifist bear is up a tree minding his own business munching on berries and searching for wild honey. Unfortunately for you, the bear is stung by some bees protecting their hive, and he makes a very hasty retreat down the tree and happens to fall on top of the very tent where you are sleeping. Your unfortunate run-in with the fleeing bear leaves you unconscious and with multiple broken bones. Thankfully a helpful park ranger takes you to the local emergency room, but who can make medical decisions on your behalf since you are unconscious?
Let’s initially assume that you haven’t taken any steps to identify someone to make medical decisions on your behalf. Rest assured, all is not lost and you will not languish in the hospital while you are unable to give directions for your treatment. Virginia Code § 54.1-2986 identifies the procedure when no advanced medical directive has been created. The law states that the hospital first takes direction from a guardian appointed by the court. (Guardianship proceedings are best summarized as a court process that is expensive, arduous, and something to be avoided at all cost.) If a guardian has not been named for you, but you are married, then your spouse can make medical decisions on your behalf. Your spouse cannot act on your behalf if a divorce action has been initiated, even if the divorce has not been finalized.
If you do not have an applicable spouse, then your adult children can make decisions on your behalf. If you do not have children, then your siblings can make decisions on your behalf. The inherent danger when we get down to the level of children or siblings is—what happens when there is more than one person making decisions on your behalf? Virginia Code provides that if your children or siblings cannot agree unanimously, then a majority vote will decide on your care. While all parents hope and believe their children will never fight when making these kinds of decisions, the reality is courtrooms and attorneys’ offices are filled with people who do not agree with the decisions of their family members. In short, the more opinions (people) you have making decisions on your behalf, the higher the likelihood of disagreement and confrontations.
Another problem related to medical decisions is that although Virginia law identifies an agent(s) to act on your behalf, the agent is not automatically granted access to your medical records. Your medical records are protected by a federal law known as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This federal law was created to regulate health information and keep your information private. Without a proper advanced medical directive in place, you could have Virginia law identifying an agent to make decisions on your behalf but federal law precluding them from full access to your medical records and condition.
HIPAA grants the medical facility/professional the option of disclosing your medical condition/records to your agent so long as the health care institution deems it absolutely necessary. In short, the hospital has full discretion on how much or how little information they want to provide your agent.
Now that we have identified the flaws in not planning for your incapacity, we need to discuss how you can avoid hassles and problems for your appointed agents. The best option to streamline incapacity medical decisions is to create an advanced medical directive (alternatively called a health care power of attorney). In this document, you identify the people you trust to make medical decisions on your behalf. Depending on how the document is drafted, you can have multiple individual agents named in sequential order, or you can choose to have multiple parties making the decision together. Professionals (like accountants, attorneys, financial institutions, or your physician) will rarely act as your health care agent. Health care decisions are usually best left to family and friends unless you do not have anyone available to name as your agent. Your advanced medical directive should also have a HIPAA release so your agent can be fully informed of your medical records and condition. The medical directive can also illustrate your wishes for cremation, burial, and even organ donation.
A properly drafted advanced medical directive authorizes your agent(s) to make decisions regarding maintaining or removing you from life-prolonging procedures (typically IV fluids, nasogastric tube, CPR, and intubation). The advanced medical directive also allows your agent to make decisions like moving you from one health care facility to a different facility better suited to your needs.
Contrary to popular belief, an advanced medical directive does not have the same legal effect as a “Do Not Resuscitate” order (more commonly known as a DNR). An advanced medical directive gives authority to your health care agent to remove you from life-prolonging procedures. Conversely, a DNR prevents the hospital or medical professional from initiating the life-prolonging procedures in the first place. Advanced medical directives are routinely created by estate planning attorneys for their clients, whereas a DNR order is signed into effect by a physician for their patient. Virginia Code § 54.1-2987.1 outlines the specific requirements to implement DNR orders. For these reasons, most people do not typically pursue a DNR order from their physician unless they have a terminal illness or are of such an advanced age that life-prolonging procedures are not desired.
No one wants to really discuss our death or incapacity, but these discussions are a necessary part of being a responsible member of society. By having your advanced medical directive in place, you can illustrate your wishes regarding your care and nominate a person you trust most to act on your behalf. If you have further questions regarding your existing advanced medical directive or about potentially implementing one, please contact the attorneys at Johnson, Gasink & Baxter, LLP to discuss your options.
Our next installment will focus on Problem #7: Some Beneficiaries Can’t
(or Shouldn’t) Manage Their Own Money.
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*Did you know that the attorneys at Johnson, Gasink and Baxter, LLP have built their practice by working with great clients like you? We are offering an estate planning class for clients and friends about funding and common issues with estate planning. The next class is:
Sept. 12th at 3:00 near our Richmond office
Don't let something happen to your friends and loved ones without proper estate planning in place! Please contact Brooke Heilesen at 1.877.790.4555 to reserve a spot in a class.
About the Author:
Spencer Baxter is an experienced problem solver who helps individuals and businesses achieve and protect their goals of prosperity, stability, and growth through appropriate planning. Spencer takes great pride in making sure that his work for clients is always reliable, correct, and on time.