Everyone should ensure that they have prepared a valid health care directive under Minnesota law. A health care directive has the legal effect of speaking for you at any time when you are unable to speak for yourself. A well-drafted health care directive should include living will language, health care power of attorney provisions, and a HIPAA release.
Your health care directive should implement living will language that outlines your feelings and wishes for your health care and describe the types of treatment and care you wish to receive. This acts as a guide to your health care agent and your physicians.
HIPAA is a reference to the Health Insurance Portability and Accountability Act of 1997, which provides strict privacy and protection for your health records. If you have not completed a proper HIPAA release that gives your health care agent the ability to fully access all of your medical records, these records will not be disclosed to your health care agent. Not all health care directives include a HIPAA release, so you should be sure to provide this advance permission to your health care agent in your health care directive. By not completing the HIPAA release, you run the risk of barring those you love and trust to make decisions for you from the records they may need to help make the decisions.
Your health care directive will also name another person, called the health care agent, to make health care decisions for you. Just because you have completed a power of attorney for legal and financial matters does not mean that you have a health care agent. Designating the right person to serve as your health care agent is important. Health care agents are typically designated one at a time. Most people typically nominate their spouse as the first designated health care agent. It is always a good idea to nominate one or more backup health care agents in case your spouse is unavailable, unwilling, or unable to act. Someone who has shown that he or she can keep a level head in stressful situations, or someone who works in the medical field, may be a good choice.
To be a valid health care directive under Minnesota law, the document must be in writing and dated. It must state your name, and it must be authorized by you while you have capacity to sign legal documents, or by another person you have authorized to sign for you. Finally, it must be either notarized or signed by witnesses. At least one of the witnesses must not be your doctor or an employee of your doctor.
Although having a properly drafted health care directive in place is important, it is just as important to communicate clearly with the team of people you anticipate will be caring for you and looking out for you. Someone in my family is going through a serious health issue. The team of people caring for her had not communicated beforehand about who was updating other relatives, who was assisting in physical care, and who was going to the doctor appointments. This made an already difficult situation more complicated in the beginning. Having an informal family conversation to discuss all of these contingencies, and who should fill which role, will go a long way to reduce stress for your caregivers.
Do you have the right legal documents, the right team of caregivers, and the right plan in place if you, or a loved one, fall seriously ill? Getting these documents and plans in place will give you peace of mind as you face a future that will always be uncertain.
–Posted by Joseph T. Pates
