Category Archives for "Advance Health Care Directives"

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College Prep

With the school year behind us, it is time for many families to make preparations to send children away to college.  This is always a special time, but after a COVID school year, the idea of being able to celebrate these milestones is more thrilling than ever.

If someone you love is about to go off to college and is over the age of eighteen (the age a child becomes a legal adult in Georgia) it’s important to be sure you have packed the most important thing in their college survival kit.  The future is exciting and unknown, and no one is thinking about bad things that might happen.

But bad things do happen.  People have accidents, or fall ill.  If something happens to a young child, the parent or guardian has the legal right to make medical decisions.  What most people don’t realize though, is that as soon as someone turns eighteen, under the law, that eighteen year old is an adult.

Under the federal HIPAA privacy laws, health care providers are prohibited from disclosing an adult patient’s private medical information, unless authorized by the court through a legal guardianship, or authorized by the adult in writing. It doesn’t matter if you are a relative, even if you are the mother or father.

In a Georgia Advance Directive for Health Care, an agent is named to make all health care decisions if the injured or ill adult is unable to communicate his wishes, and the agent is authorized under the HIPAA privacy laws to have access to all private medical information.

Without this important legal document, families find themselves in court, filing for guardianship.  That process is expensive, delays access to needed medical information, and causes additional distress in a family already going through a difficult time.

The solution is simple.  Before an eighteen year old heads off to college, or out of the family home to an apartment, give him the gift of knowing his family will still be able to take care of him if he needs help.  Have him sign an Advance Directive for Health Care.  Having the document won’t prevent tragedy from happening, but it will enable a young adult to know he’ll have the protection of those who love him quickly available if it is ever needed.

Elements of Estate Planning: Advance Directive for Health Care

If you have been following our series this month, you know that we have been focusing our blog posts on the most common documents that comprise an Estate Plan. So far we have discussed Wills and Powers of Attorney. This week, we will look at one of the most critical documents needed for any estate plan – the Advance Directive for Health Care.

What would happen if you were in a serious accident and unable to communicate with medical personnel? Who could get information about your condition or make decisions regarding your treatment? Unless a medical provider has your express permission, information about your condition cannot be disclosed to any person. But how can you give permission if you are unable to communicate?

In an Advance Directive for Health Care, you name an individual who you trust to serve as your agent to receive information from and communicate with medical personnel. Your agent is responsible for making medical decisions for you if you are unable. In the document, you can also provide guidance to your agent by stating your treatment preferences regarding life sustaining procedures. By having this document in place ahead of such a crisis, you avoid unnecessary chaos during an emotional time by laying out a clear plan of who is responsible for making medical decisions for you and what kind of care you want.

If you do not have an Advance Directive for Health Care in place, a healthcare provider might accept the instructions of family, but if family members disagree, there will be no one with authority to be the decision maker. Without an Advance Directive, in the event of conflict, someone would have to petition the Probate Court to be appointed as guardian in order to make medical decisions for you. The process is expensive, time-consuming, and requires a Court hearing. The Judge will appoint an attorney to represent you, but that attorney will not know you and will not know if the person petitioning the Court to be guardian is someone you trust or who you would want to make decisions for your health care. Without an Advance Directive for Health Care, you are leaving this critical decision up to the Probate Court.

The Advance Directive for Health Care is a relatively simple document that can make all of the difference in an emergency. You control and make clear who should be communicating with medical personal and making medical decisions for you and what life sustaining measures should be taken. The Advance Directive for Health Care is not just for the elderly, any individual over the age of 18 should have this document in place to ensure that there is a clear plan in the event the individual is unable to communicate medical decisions.

Get Your Parents To Talk

In six of the ten metropolitan Atlanta counties, growth in the older population is exceeding growth in the general population.  If you have parents, grandparents or other family members who are part of that older population, you may find yourself having to step in to take care of their finances or health care.  Would you have a clue about what to do?

Members of the older generations often pride themselves on being independent and they keep their financial affairs private. They aren’t going to volunteer information, and may not take it well if you ask whether they have a legal and financial plan in place. If the conversation becomes unpleasant, you may decide to keep the peace and drop it.

You should think about what would happen if there were a diagnosis of dementia, or a serious illness, and they were no longer able to be independent. Would you be prepared?

Do you know if there is a Power of Attorney or an Advance Directive for Health Care?  If those documents exist, do you have copies or know where to find them?  Do you know if the Power of Attorney was done recently or ten years ago?   In Georgia or the state where they used to live?

If they don’t have an effective Power of Attorney and Health Care Directive, and dementia sets in, it will be too late for those documents to be signed. That’s when you’ll find yourself in Court, filing for a Guardianship and Conservatorship. That process involves a court hearing, multiple attorneys, evidence presented, and thousands in court costs and legal fees.

If they object to seeing an attorney to have the necessary documents put into place because “it will cost too much”, you can explain to them that the money they save, plus a whole lot more, will probably have to be spent on legal fees and court costs down the road.

As hard as it might be to get the older generation to share information they consider private, it will be much harder to deal with the consequences if they don’t.

Do you need help ensuring that your parents are properly protected?  Schedule an appointment today by calling  770-817-4999 or emailing drlg@debrarobinsonlaw.com.

Preparing for Coronavirus: The #1 Document Every Adult Needs To Have

Preparing for Coronavirus: The #1 Document Every Adult Needs To Have

As the coronavirus continues to disrupt daily life and leave Americans uncertain of the future, you don’t have to feel helpless during this pandemic. In fact, now is a great time to be proactive and plan ahead should you or a loved one fall ill. One of the most important and relatively easy things you can do (and should do) is to select a medical agent and set up your advance healthcare directive.

What Is a Medical Agent?

A medical agent (also called a healthcare agent, healthcare surrogate, a healthcare proxy, or a medical proxy) is a person you authorize in a medical power of attorney to make decisions about your medical care if you are too ill to make them yourself or are otherwise unable to communicate your wishes.

Why is it important to choose a medical agent now?

Since no one knows exactly how they will be affected by the virus should they fall ill, it’s best to plan for the worst and hope for the best. Part of that planning is making sure someone can make healthcare decisions for you if you fall ill and are unable to make those decisions for yourself.

Factors to Consider in Choosing Your Medical Agent

A medical agent is an important role, and the person you choose will have the power to make critical healthcare decisions—like consenting to a treatment plan, whether to accept or refuse medical treatment, and which healthcare providers or hospitals to use for your care. As a result, it is crucial to think carefully about who you choose to fill this role. Many people simply assume that their spouse or their oldest child should take on this role, but they are not always the best suited. Here are some factors to consider when selecting an agent:

1) Emotional maturity. People handle stress differently, and not everyone is able to set aside their emotions and make level-headed decisions when someone they love is suffering. In addition, some people are simply not assertive enough to act as a strong advocate in the face of differing opinions of other family members–or even health care providers–who suggest a treatment plan you have informed your medical agent you do not want. You should choose someone who is able to think rationally in emotionally difficult circumstances, even if that means you must look outside of your family to find the best person for the job.

2) Location. The person you choose to act as your medical agent should be someone who lives close by and is able to act on your behalf very quickly in the event of a medical emergency or if you need your advocate to serve in that role for an extended time period. In current times, many people might be under a mandatory or recommended stay-at-home order, or may not be available or willing to travel to another city or state.  Consider naming several alternate agents to account for someone’s potential unavailability.

3) Is willing/able to serve. Acting as a medical agent can be a time-consuming and emotionally draining job. Make sure that the person you choose is willing and able to set aside the time necessary to serve as your patient advocate. Don’t just assume the person you want to be your medical agent is willing: Be proactive and ask if he or she is willing to take on that role. Keep in mind that if you are elderly, you may want to avoid naming a friend or family member who also is older, as there is a greater chance that they will experience mental or physical decline at the same time as you, which could impede their ability to serve as your advocate when the time comes.

4) Will honor your wishes no matter what. Your medical agent has a duty to make decisions on your behalf that you would have made to the extent that he or she is aware of your wishes. This is the case even if your medical agent disagrees with your choices. As a result, your medical agent needs to be someone who is willing to set aside his or her own opinions and wishes to carry out yours. It may be prudent to appoint someone who has values and religious beliefs that are similar to yours to reduce the instances in which your agent’s opinions differ significantly from yours. Do not choose anyone that you do not trust to carry out your wishes.

People You Should Not Choose

Many states have laws prohibiting certain people from acting as your medical agent, even if they are otherwise well-qualified to act in that role:

1) Minors. Many states have laws expressly prohibiting a minor from being a patient advocate. The age of majority could be 18, 19, or 21 years of age, depending upon the state. Some states have exceptions to this prohibition for married or emancipated minors.

2) Your health care providers. Some states not only prohibit your health care providers from acting as your medical agent, but also preclude the owner, operator, or any employee of any facility in which you are a patient or resident from acting in that role. Some states that have adopted this prohibition make an exception for individuals who are related to you. A few states, such as Kansas, Missouri, and Kentucky, also have an exception if that person is an active member of the same religious organization as you.

Need help?

Medical directives may be among the most important legal documents you prepare – especially in light of COVID-19. Picking a medical agent can be tricky and we can help you think through your choice. We can also help with any other estate planning needs you may have—whether that’s setting up a financial power of attorney, last will and testament, or a trust. Please give us a call today to discuss how we can help you and your family be prepared should you fall ill from the coronavirus.