How Are You Planning for Your Future?

As the US passed 3 million Coronavirus cases, a single day record high of more than 66,000 new cases, and over 134,000 deaths, this disease is looking different. While previous hotspots like New York are on the downward trend, new hotspots are Florida, Texas and Arizona. Another difference – the average age of new cases has dropped 15 years. The average age of newly diagnosed cases in March was individuals in their 50’s and 60’s. Over the 4th of July weekend, the median age of new cases in Florida reached a record low of 33. This is no longer a disease that is just impacting the older, more vulnerable population. There is reason for much of the population to continue to be concerned and plan ahead.

Although our conception of estate planning typically focuses on financial stability and asset preservation, advance care planning is equally important. Advance directives control who has access to your protected health information, who makes end-of-life decisions on your behalf, and whether aggressive and costly treatment options should be pursued.

In these challenging times, everyone deserves to have their healthcare wishes known and honored. Completing an advance directive and having those difficult conversations with trusted providers and loved ones helps to ensure that everyone will receive goal-concordant care at the end of their life.

The Most Common Forms

The four most common forms individuals use to communicate their healthcare preferences include: 1) Advance Directives Naming a Health Care Agent; 2) Advance Directives for Mental Health Treatment; 3) Advance Directive Regarding End-of-Life Care; and 4) HIPAA Release.

Advance Directives Naming a Healthcare Agent

This form allows you to appoint an agent to act on your behalf. The agent may make healthcare decisions and can also receive protected health information (PHI) in order to make the best decision in your interest. Each state has different terminology for this form. In New York, for example, this form is called a “Health Care Proxy,” while Texas refers to it as a “Health Care or Medical Power of Attorney Form.” Additionally, you may come across a “Designation of Health Care Surrogate.” At the end of the day, all of these forms have the same purpose: appointing a trusted individual to make difficult decisions when you can no longer act on your own behalf.

Although most states do not require such a provision, healthcare agents can be authorized to receive medical records from a doctor, pharmacist, or any other medical professional. When you designate a heathcare agent, you may specify when the agent’s authority begins. For example, if you decide that your agent’s power does not begin until you are incapacitated, your medical information cannot be shared  with anyone until a qualified medical professional determines that you cannot make these decisions for yourself. 

Advance Directives for Mental Health Treatment

In some states, completing an advance directive naming a health care agent is sufficient to cover mental health treatment. Many states, however, mandate that you sign a separate advance directive specifically for mental health care. In New Jersey, this form is called an “Advance Directive for Mental Health Care” while Illinois calls it a “Declaration for Mental Health Treatment.” This form is meant for you to think about psychotropic medication, electroconvulsive therapy, admission to and retention in a mental health facility and other preferences for emergency mental health treatment. Additionally, you may specify which physician you would like to treat your mental health issues. As the American population ages, mental health advance directives become more important and it’s encouraged that everyone has this conversation with their family and friends.

Advance Directive Regarding End-of-Life Care

Also known as “Living Wills” or “Directives to Physicians,” this form allows you to specify which procedures and treatments you would want performed. CPR, mechanical respiration, artificial nutrition and hydration, antibiotics, and pain relief can be specified in this form. If you have specific views about whether you would want to be kept alive in a vegetative state or kept alive by a ventilator, this is where you would specify these wishes. It is impossible to consider every single medical treatment and intervention but it encourages individuals to be as specific and detailed as possible when completing an advance directive.

HIPAA Release and Authorizations

Whereas advance directives are determined by state law, HIPAA Releases are governed by federal rules. These forms are much more standardized and there is little state-to-state variation. Once you choose to execute a HIPAA Release and Authorization, your agent generally has the same rights you would have to your PHI. However, even if you sign a HIPAA Release, your agent is generally not authorized to access psychotherapy notes and information gathered in anticipation of legal actions taken against you. Since medical professionals are wary of violating HIPAA, it is a best practice to separately authorize the release of your PHI. Often, advance directives and HIPAA releases are filled out at the same time and stored as one document, but it’s recommended to keep the HIPAA Release separate. This way, your healthcare providers will not have to worry about facing criminal and civil penalties for releasing your health information to your agent. 

Advance care planning is a lifelong process, and should happen early and often. The pandemic is a reminder that everyone over the age of 18 should be thinking about this, have a plan in place, and make sure that any documents they complete are available to providers and healthcare agents.

Alex Paris is summer summer legal intern at Vynca. He is a rising third year law student at Michigan State University College of Law where he is the Notes Editor of the Law Review.