Directing Your Health Care Decisions
Something very important happened on April 14, 2003. Did you miss it? That is the required compliance date for the Health Insurance Portability and Accountability Act (HIPAA), a law which was enacted in 1996. The HIPAA “privacy rule” imposes strict guidelines on the disclosure of “protected health information” (or PHI) without a medical patient’s express permission. These privacy protections are designed to help us, but they can be problematic if your spouse or other loved one needs to “go to bat for you” with health care providers when you are incapacitated due to an injury or illness.
What HIPAA Requires
Before your spouse or loved one can discuss your health care condition, obtain your medical records or seek a second opinion, they must have a written document executed by you, with very specific language required by HIPAA. Yes, you read that right. Even spouses do not have such authority simply by virtue of their wedding vows to care for one another “in sickness” and in health.
Advance Health Care Directives
Every comprehensive estate plan must include an Advance Health Care Directive (also known by other names, like a Health Care Proxy) that is HIPAA compliant. Period. This goes for every adult American who has reached his or her 18th birthday. With adult children tending to wait longer than previous generations to marry and with aging parents living longer than past generations, this has become a uniquely “Baby Boomer” challenge. Are you in that “Sandwich Generation” perhaps? A key component of the Advance Health Care Directive is the Durable Power of Attorney for Health Care Decisions through which the patient appoints Agents to make his or her medical decisions when the patient is unable to do so.
The Three Variables
There are three variables at play when it comes to making these essential health care decisions. Unfortunately, we only know one of the three right now. However, that variable is why plans need to be made today, not tomorrow.
The first variable we do not know is what and when. What is going to trigger the need for your Agent to act? Is it an auto accident five minutes from now or a stroke down the road?
The second variable we do not know is health care related. What technology, treatments, procedures and pharmaceuticals will be available at that what and when time? What insurance will be around to pay for your care? As you can see these are wild card circumstances we cannot anticipate.
The third variable is the one you know today. Who do you know and trust to make your what and when decisions based on the available technology, treatments, procedures and pharmaceuticals … should you ever be unable to make your own decisions?
Communication is Key
As with most important areas in life, communication with your spouse and loved ones is key when it comes to making life and death health care decisions for you. Have you had the conversation? If you are unsure where to start, then you might consider a resource called “Five Wishes” produced by “Aging with Dignity” which is available online.
In addition to your spouse and loved ones, you should discuss your “wishes” with your primary care physician and spiritual advisor. That way everyone will be on the “same book and page” when needed.
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