Should You Have Advance Directives?

     The Terri Schiavo saga is very fresh in everyone’s mind right now. The original facts in this case are overshadowed by all of the legal and political wrangling now going on to save or end her life. But the original facts are that Terri Schiavo did not have any advance directive before she collapsed in 1990, after having difficulty breathing and actually having her heart stop for several minutes, resulting in severe brain damage. She was a 26 year old healthy female, why did she need to worry about death or mental disability issues?

     If she had taken the time to prepare a Health Care Power of Attorney and a Living Will, we probably would not be having the drama that is playing out now over 15 years later. Terri may already have been allowed to die or she may have received significant therapy and made tremendous progress toward recovery. We do not know for sure what the outcome would have been, though, because we do not know for sure what Terri’s written expressed wishes would have been regarding keeping her alive by feeding tube and we do not know for sure who she would have appointed to make her health care decisions.

     You are also at risk of ending up like Terri Schiavo, unless you have put your wishes into writing in the form of an advance directive. As mentioned above there are two different kinds of advance directives, the Health Care Power of Attorney and a Living Will.

     The Health Care Power of Attorney is a legal document whereby you appoint someone else, usually a trusted family member or friend, to make health care decisions for you, if you are unable to do so for yourself. This can be temporary or permanent, depending on the health situation. Once you are determined to be unable to make your own health decisions, usually by one or two doctors, this person is now responsible for making all health related decisions for you from which medications or medical procedures you should have, to what health facility you should be in and everything in between.

     The Living Will is a written declaration of your wishes regarding use of extraordinary measures in end of life situations only. Nebraska law specifically pertains only if your attending physician has determined that you are in “a persistent vegetative state or terminal condition.” Federal law may also apply to the situation where you are in an irreversible coma or suffer from persistent severe dementia. Only in those situations can your physician or your agent under your health care power of attorney or your legal guardian legally remove life sustaining treatment and you must also have specifically authorized the removal of artificial nutrition and hydration in order for it to be withdrawn or not applied to begin with.

     These documents are essential for anyone who is 19 years of age or older. These documents are not for the very old or very sick.

     We have written about the impact enforcement of the Federal Health Insurance Portability and Accountability Act (HIPAA) is having on the health care treatment of incapacitated individuals, but it bears repeating here again. Any health care employee can be charged with a felony offense and fined up to $50,000 per violation if he or she releases any medical information about you without your express written consent to such release of information.

     The trouble with this waiver or release comes in the emergency situation where you are already incapacitated because of the medical condition or otherwise, you are now legally incapable of giving such consent. In this situation, doctors and hospitals have been known to not share any information with family members, even spouses and adult children, including whether you are even a patient at the hospital, or whether you are alive or dead. If you have an old health care power of attorney that does not specifically waive your right to privacy under HIPAA, then even your advanced planning will not immediately get your medical information to your loved ones. We recently had an attorney who practices in this type of law here in Omaha, describe how her husband became ill in an emergency and he did not have an advanced directive with proper HIPAA waiver language, so this attorney literally refused to leave his side the entire time he was in the hospital for fear that a doctor would come in and examine her husband and she would miss out on important information that could not be shared with her later. That is really sad, but it may be a reality for you or your loved ones if you have not done proper planning.

     If you have no advance directives or old advanced directives, your loved ones may have to file for appointment as your legal guardian in probate court in order to get medical information about you. This “living probate” process is time-consuming, expensive, and completely public. It is also completely avoidable, with a little simple planning.

     So, if you have not had a health care power of attorney and living will prepared in the last year, CALL A WEALTH TRANSFER ATTORNEY TODAY.

Omaha Estate Planning Attorneys Stephen Schmidt and Rodney Halstead serve clients in Omaha, Nebraska as well as the surrounding cities of Fremont, Millard, Gretna, Elkhorn, LaVista (La Vista), Bellevue, Papillion and Ralston. Please feel free to contact the office if you or a family member is in need legal assistance with Nebraska Probate and Estates, Nebraska Estate Planning and Asset Protection, Nebraska Elder Law, Nebraska Trust Planning, Nebraska Tax Planning, Nebraska Medicaid Planning, Nebraska Wealth Transfer Planning, Nebraska Business Succession and Planning or Nebraska Fiduciary Services.

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