In this episode, Tim will describe key documents needed to maintain control of your health care decision-making.
WRVO Producer Mark Lavonier:
This podcast is part of the series Estate Planning Pro Tips, hosted by attorney Tim Crisafulli of Crisafulli Estate Planning and Elder Law PC an estate planning probate and elder law firm serving clients throughout central New York. A former school teacher, Tim explains complex legal subjects in an easy-to-understand way. The commentary focuses on the central aspects of estate planning, such as Wills, trusts, asset protection, long-term care, and probate. And now here's Tim.
Tim Crisafulli:
Few things are more important to people than staying in control of their health care decision-making. For those who plan ahead, the key documents that help with this are Health Care Proxy Living Will and medical orders for life-sustaining treatment, or the MOLST. For those who do not plan ahead, there are default rules in place, whether you like them or not. First, let's look at the Health Care Proxy. This document sets forth who is in charge of making health care decisions for you. If you cannot do so for yourself, not all Health Care Proxy documents are created the same. A quality Health Care Proxy document should have the agent you appoint up-to-date contact information and at least one successor agent. A quality Health Care Proxy should also include HIPAA language. HIPAA stands for Health Insurance Portability and Accountability Act, and it includes rules about who has access to your medical records. Obviously, the person you put in charge of making medical decisions for you should have access to your medical records so that the agent can make informed decisions. That's why it's important to have HIPAA language in a properly drafted Health Care Proxy document. Next, let's discuss the Living Will. This is a document where you explain the type of care you want under different circumstances. A Living Will may include provisions explaining that if there is no hope for recovery and no hope of regaining consciousness, then no further lifesaving measures such as CPR should be applied. Without a clear explanation of one's wishes, there is a strong risk constantly played out in hospitals, that family members cannot agree on what mom or dad would have wanted, and lifelong family disagreements ensue. I have a nephew who's a vascular surgeon, who often complains about situations where an elderly patient is nearing death. There are no legal documents in place, and the adult children disagree about treatment. It does not go well. These first two documents, Health Care Proxy and Living Will, are legal documents. The final type of document the most is a medical document. After all, its first two words are medical orders. These are created by medical personnel and not created by lawyers. The MOLST converts a patient's wishes into specific medical instructions. Finally, if a patient cannot communicate, has no Health Care Proxy, no Living Will, and no MOLST, then the default rules under New York law prevail. The first default decision maker is the spouse or domestic partner. If none, then an adult child, then a parent, then a sibling, then a close friend, all in that order. Of course, if there are multiple adult children, more than one parent or multiple siblings, and if they are not all in agreement, then conflicts occur. In some, the key legal documents for staying in control of one's health care decision-making are the Health Care Proxy, the Living Will, and the MOLST absent having those in place. State law prevails and creates a system that risks disagreements among loved ones.
