If you were hospitalized today and SOMEONE had to make decisions for you, who would it be? Do they know what you’d want and have legal authority to make decisions for you?
This is critical whether you are young or old. If you are over the age of 18, and you cannot make medical decisions for yourself, due to an inability to communicate, you want a Health Care Directive up to date and ready to go.
Yes, the kids these days call it #adulting, and you need to do it too.
The good news is that you can do it for free — on your own or with the help of a lawyer. In this article, I’ll share:
- the 3 parts every Health Care Directive must have and why they’re important,
- the 5 things to look for in your Health Care Directive, and
- how to update yours specifically for Coronavirus/Covid-19 at no cost.
But first, let me tell you a story about my good friend, Jennifer …
My good friend, Jennifer, wanted to name me as her health care agent. We talked about it. But she never did the paperwork to create her Health Care Directive, legally. Even though I’m a lawyer. Yes. :(
Then, Jennifer was in a bad car accident, sending her into a coma for a few days. Her roommates knew to call me.
But, because I wasn’t legally named as her agent, healthcare decisions for Jennifer were assigned to her mother. And, unfortunately, Jennifer’s mom was not up-to-date with the kind of healthcare choices Jennifer would have wanted for herself.
As a result, Jennifer didn’t receive the healing and rehabilitation care she would have wanted after the accident to promote healing. For example, her mom thought CBD was a bad idea, maybe illegal, and wouldn’t help. Jennifer would have definitely wanted CBD to support her healing, as she had already been taking it before the accident.
Jennifer was also not able to receive her favorite smoothies and fresh food while she was in rehab. We were all ready to bring them to her, but most of her friends were not able to see her while she was recovering. This broke my heart. Jennifer was one of the most community minded people I knew, and I know she would have wanted community around her during her healing.
While Jennifer ended up recovering her physical capacity, and was made a ward of the court under her mother’s guardianship, due to her continuing brain injury. Then, Jennifer was taken from her home and community in Boulder to the town in Iowa where she grew up. This was the last thing Jennifer wanted. But, Jennifer didn’t have a choice because she hadn’t legally documented her choice of me as her health care decision-maker.
So, are you ready now to actually get it done, or updated? Here’s the info:
The purpose of your Health Care Directive is to make sure that health care decisions are made for you in line with how you would want them made, if you cannot make them yourself.
If medical professionals are choosing who to intubate and who not to intubate, as they were forced to in Italy, you don’t want any barriers to them choosing you, right? Morbid, I know. But we are living in morbid times.
So, get a Health Care Directive in place, okay?
Typically, an “Advance Health Care Directive” (sometimes called a Health Care Directive or Medical Power of Attorney), has three parts:
- The Living Will/Medical Directive: States HOW you want decisions to be made for you, if you cannot make them for yourself.
- The Medical Power of Attorney: States WHO should make decisions for you, if you cannot make them for yourself.
- Often, these documents would be accompanied by a HIPAA Release that authorizes medical professionals to disclose information to your named Medical Power of Attorney/Agent.
Depending on the state where you live, these documents can be combined into one document, or be two or three separate documents.
If you do not have a health care directive in place, NOW is the time to get one.
And, if you do have a Health Care Directive in place, NOW is the time for you to pull it out, read it, make sure you understand it, and possibly update it.
Here Are the 5 Things to Look For In Your Health Care Directive:
- Does your Health Care Directive name the people you would want to act on your behalf? Note I said “PEOPLE”, not “person.” You should absolutely have at least one, if not two, people named after your primary first choice decision-maker.
- Does your Health Care Directive list their current, up to date cell phone number? You want to make sure they can be reached, if needed.
- Is everyone you have named also listed on a HIPAA Release. If someone you’ve named wants to talk to your doctor, you want the information to flow freely, unimpaired by legal restraint.
- Does your Health Care Directive provide that you should not be intubated or put on a ventilator? Many standard documents and forms include absolute prohibition of intubation. Intubation may be necessary to treat coronavirus through a ventilator because it is a lower respiratory tract infection.
If your Health Care Directive provides for no intubation, add in this language:
“Despite anything to the contrary in this document, if necessary due to Coronavirus or any other respiratory infection, I DO want intubation, ventilation, and all other life-saving measures.”
Please note that those life-saving measures could include medications that you would not normally take, so consider whether you want to include any sort of a limitation on certain drugs, even if it could put your life at risk.
5. Does your Health Care Directive allow authorization to account for lockdowns and self-quarantines? Typically, your health care agent would have authorization in hand and present the form to medical professionals.
Given current restrictions due to lockdowns and recommendations for self-quarantine that may not be possible, so consider updating your Health Care Directive as follows:
“I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via web conference including but not limited such services as Skype, Zoom, FaceTime, or in any other manner appropriate to the circumstances. Further, I expressly hold harmless any medical provider for relying on such communications of decisions and directions by my Agent. The express purpose of this provision is to foster decision making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision making.”
This wording came from a community of heart-forward lawyers across the United States that I lead, and I am deeply grateful to all of them for coming together to make sure their communities are well-served during these times.
If you would like to work with a lawyer to ensure your Health Care Directive is up to date and clearly specifies your choices for your care, call one of the lawyers in my community, many of whom are offering free Health Care Directives right now.
If you want to do it yourself, Five Wishes is giving away downloadable Health Care Directives for free, on their website. Regarding whether Five Wishes is a legal document, they say this on their website:
“It meets the legal requirements of 42 states, but is used widely in all 50, and a federal law requires medical care providers to honor patient wishes as expressed. See the list on page 3 of the Five Wishes document. Just follow the directions when you sign it.”
If you are at all concerned about following the directions properly, or would like to include more specifics in your Directives (such as what type of food you would want fed to you if you were incapacitated, who you would want to be able to see you — or not see you), or you just want support and guidance thinking through these issues, talk to a lawyer.
Speaking of lawyers, here’s my disclaimer: I’m not your lawyer unless you have paid me for legal advice and we have a signed agreement. While I am licensed in California (Bar License: 212365, under my former name, Alexis Martin Neely), I mostly just played a lawyer on TV. And now I train other lawyers on how to serve with heart and soul.
So what you read here is for educational purposes only, and not legal advice. You should absolutely consult with a lawyer before making any legal decisions for yourself or your family.
If you do want to work with a lawyer, I strongly recommend considering a lawyer who has the heart of a counselor, and specific training on how to get families talking about hard things, with ease. (That’s exactly what we train our lawyers to do.)
You can find a lawyer you love at PersonalFamilyLawyer.com.
Okay, end commercial.
So to wrap up, get out your Health Care Directive. Read it. Make sure you understand it, and that it has the 3 parts I mentioned, and you’ve checked it over for the 5 things I said to look for.
And, if you do not have a Health Care Directive, get one now. I’ve given you two ways to do it for free (with a lawyer and on your own). Now there’s no reason at all not to get it done. For the people you love.
Want more support getting your ducks in a row? Join my next live training on how to create an inventory of what really matters, so you can make sure the people you love know how to find and access everything you have. Otherwise, they may lose what you care about, or be left with a big mess. Neither is great. #adulting