Planning for medical emergencies should be made a part of every estate plan. The legal document necessary to plan for a medical emergency is called an Advance Medical Directive.
What is an Advance Medical Directive?
An Advance Medical Directive is a legal document that allows you to specify who will make health care decisions for you if, for any reason, you cannot make these decisions for yourself. This document has different names in different states, such as a Medical Power of Attorney, Medical Directive, Health Care Power of Attorney, Designation of Health Care Surrogate, or Durable Power of Attorney for Health Care. The person you name to make health care decisions on your behalf in an Advance Medical Directive is referred to as your agent, advocate, or surrogate.
State Laws Govern Advance Medical Directives
- Who can make an Advance Medical Directive (usually a mentally competent person who is over the age of 18);
- What minimal provisions an Advance Medical Directive must contain to be legally enforceable;
- Who can and cannot be named as an agent, advocate, or surrogate;
- What formalities must be observed when an Advance Medical Directive is signed; and
- Who can and cannot witness the signing of an Advance Medical Directive (many states prohibit a health care provider from acting as a witness).
Because of these strict state law requirements, it is important to have your estate planning attorney assist you with preparing and signing your Advance Medical Directive.
Complying With HIPAA Rules
Aside from strict state law requirements, your Advance Medical Directive or Living Will must also contain provisions to comply with the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA. Some states have also enacted laws that are similar to HIPAA, such as California.
BEWARE - While HIPAA was enacted in 1996, it took Congress until 2001 in which to promulgate the rules that govern HIPAA compliance. As such, if you already have an Advance Medical Directive and a Living Will but your documents were created before 2001, then your Advance Medical Directive and Living Will are not HIPAA compliant and must be redone in order for these documents to work as you expect them to work.