Estate planning and elder law attorney Jackie Bedard of Cary, NC, shares her professional insights about new developments in directives for medical care decisions.
Advanced Care Planning (ACP) involves making decisions about medical care and provisions for any possible future situation when you might be unable to do so. Some examples of such cases are catastrophic accidents, terminal illness, or dementia.
While many people associate Advanced Care Planning exclusively with old age or terminal illness, people of all ages and health conditions can benefit from ACP. Reaching crucial medical care decisions beforehand can protect your interests, secure your wishes, and spare your loved ones agonizing decisions they may not feel equipped to make.
Advance Directives summarize your health wishes, define the limits of care, and specify a health care agent who would make crucial medical care decisions for you if you are incapable of making or communicating these decisions yourself.
An Advanced Directives document allows the patient to state end-of-life goals in case a medical crisis occurs. Advanced Directives usually express the choice of:
1. A person to make vital health care decisions for the patient
2. The type of medical care the patient wishes or does not wish to receive in specific situations
3. The patient’s preferred level and methods of pain relief
4. General treatment the patient would accept from others
5. Privacy concerns and how much medical information loved ones would receive about the patient’s health care
Different types of Advance Directives include:
Health Care Power of Attorney
Health Care Power of Attorney is a legal document naming the patient’s representative to make health care decisions if the patient cannot make those decisions for him- or herself. In North Carolina, any legally capable adult can function as a health care agent.
A living will declares that the patient prefers to die a natural death if he or she has an irreversible or incurable condition that will in all certainty shortly lead to death or extensive loss of function or cognitive ability. A living will can direct medical care providers to abstain from treatment such as artificial nutrition and mechanical ventilation.
HIPAA, the Health Insurance Portability and Accountability Act of 1996, is a federal law that protects patients’ privacy rights. It restricts health care professionals in terms of the people with whom they can share medical information and discuss a patient’s treatment options. In North Carolina, HIPAA encompasses all medical personnel, including health care providers, pharmacies, nursing facilities, insurance companies, and other healthcare-related organizations. Healthcare providers are bound by HIPAA, which means if they fail to obey the law, they could face sanctions, monetary fines, and lawsuits. As you can imagine, these harsh punishments make healthcare providers reluctant to share medical information with anyone other than the patient.
For these reasons, you must obtain a North Carolina HIPAA Release, a legal document that permits your healthcare providers to share your medical information with the people you identify in your North Carolina HIPAA Release. It allows you to authorize your physicians, dentist, health plan, hospital, clinic, laboratory, or pharmacy to disclose your medical records concerning all past, present, and future medical or mental health statuses to the people you designate in the release. If you want your trusted loved ones to have access to your medical records should you become incapacitated or hospitalized, a North Carolina HIPAA Release is a must.
Once you have executed your release, your next step is to inform all parties involved, including:
- Your primary care physician and all your doctors
- Your Health Care Power of Attorney
- Your Durable Power of Attorney
- The Executors You Have Named in Your Last Will and Testament
- The Trustees Named in Your Trust
MOST (Medical Orders for Scope of Treatment)
The MOST form determines which life-supporting treatments the patient would have their care providers choose or abstain from. The patient’s physician would need to fill out this form.
DNR (Do Not Resuscitate)
A DNR order tells medical care providers to refrain from resuscitation in case of cardiopulmonary arrest. The patient’s physician, nurse practitioner, or physician assistant must sign the DNR form.
Additional Guidance and Directives
The above directives are a great start, but we also know that most of our clients really want to make things easier for their loved ones and make sure their wishes are clearly known. Thus, we have developed several additional tools we recommend to help our clients and their loved ones:
Living Will Scenarios
Alas, while it may be unpleasant to think about, these days there are a lot of different medical decisions involved in end-of-life situations with some being quite invasive and others are relatively non-invasive and may be recommended as a comfort measure. And making these types of decisions on your behalf is a decision your loved ones may reflect on for years to come. Thus, rather than simply making blanket statements about not wanting life-sustaining measures, we have created tools to help guide our clients through the process of documenting their wishes regarding different scenarios and treatment options.
Guidelines for Health Care Agents
As life spans have gotten longer, the likelihood that we will live the final years of our lives impacted by physical or cognitive impairments has increased. Thus, your health care agent may be tasked with making health care and caregiving decisions for you for several months or years. Thus, we have developed tools to help guide our clients through the process of documenting their wishes on health care and caregiving decisions that go far beyond just end-of-life scenarios.
We also provide your future health care agents with guidance about their roles and responsibilities and common issues that arise when interacting with healthcare providers.
Changes to Advance Directives Notarization during the COVID-19 Pandemic
In North Carolina, signing an Advance Directives document requires the presence of two witnesses and a notary. The COVID-19 pandemic and the ensuing health precautions have caused considerable difficulties in conducting legal transactions. Temporary solutions include options such as Emergency Video Witnessing, which allows legal document notarization via video technology.
Specifically, Senate Bill 704 allows all Notary Publics in North Carolina to conduct emergency video notarizations to enable the approval of crucial health care documents. House Bill 196 extends the option of emergency video notarization through the end of 2021.
At the same time, Senate Bill 666 updates requirements for health care powers of attorney and advance health care directives in North Carolina and enables the Secretary of State to accept electronic filings of advance health care directives.
How an Elder Care Attorney Can Help with Advanced Care Planning
A consultation with an experienced elder care lawyer can help seniors and other people planning for Advanced Care. A lawyer with a combined experience of estate planning and elder law can provide valuable advice on health care funding plans, preserving eligibility for Medicaid, selecting a long-term care establishment, and protecting the client’s assets during and after the client’s lifetime.
An elder care lawyer can help compose advanced health care directives, establish medical power of attorney, and, as a last resort, assist with guardianship arrangements in cases of people who can no longer make informed, responsible decisions regarding their care.
A knowledgeable estate plan together with a long-term advanced care plan can help clients gain peace of mind, knowing that proper arrangements are in place to handle all financial, medical, and legal decisions in all scenarios.
Working with a dedicated, experienced elder care and living trust attorney is one of the best decisions families can make as they prepare for the future.
Jackie Bedard: Estate Planning Attorney in Cary, NC
At Carolina Family Estate Planning, we help families build better lives by planning for a secure future via estate planning, asset protection, and long-term care planning. Unsure about your extended care options? We’re here to help you get your ducks in a row.
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