My eldest son graduates from high school this week. It’s an exciting time. He’s looking forward to going off to college. I’m excited for him.
When he turned 18 years old, I had the “talk” with him. No, not that one. That talk was some years ago. This talk was about what it means legally to turn 18 years old. The law says he is an adult. Being an adult brings with it a whole new set of rights, duties, and privileges. One area that is significant for a young man going to college is that he is now entitled to the same privacy protections as any other adult.
Many parents have a difficult time processing the whole “privacy thing”; with their college student children. Parents are paying tuition, books, expenses, and health insurance. So, most parents reason that they should still have complete access to their child’s financial and medical information. But, that’s not the way the law sees it.
In fact, health care providers and financial institutions are prohibited from disclosing your child’s private information to you unless your child has signed an authorization to do so. This arrangement is usually not a big problem. After all, you want your child to be self-sufficient, independent, and responsible.
But, what will happen if your child has an emergency? If he gets injured, will you be able to get information about his condition? Or, if he gets sick while at school, will you be able to view his medical information and talk to the doctors about the diagnosis and treatment plan? If your child becomes incapacitated while at school, are you be able to step in and help handle his finances?
The short answer to each of these questions is “no.” Unless you prepare in advance, you won’t be able to access your child’s medical or financial information even when there is an emergency. Fortunately, however, there is an easy solution. There are three simple documents your child can sign before leaving for school that can change this situation. You absolutely should not send your child to college without first signing these three documents.
Durable Power of Attorney
The Durable Power of Attorney covers your child’s financial affairs. With this simple document, you can manage your child’s finances if he becomes physically or mentally unable to manage them himself. This means you can handle everything he would handle relating to financial decisions. You can pay his bills, apply for social security benefits on his behalf, and open or close bank accounts.
Medical Power of Attorney
The Medical Power of Attorney covers your child’s medical condition. This document allows you to make medical decisions on behalf of your child if he is incapacitated and unable to make his own decisions. You will also be able to see your child’s medical records so you can make an informed decision on his behalf.
HIPAA is the acronym for the Health Insurance Portability and Accountability Act of 1996. This Act requires all health care providers and insurance companies to protect the privacy of an individual’s healthcare information. A violation of this law can result in jail time and hefty civil penalties. Needless to say, healthcare professionals take this law seriously (as they should) so you won’t be able to see your child’s medical records without this release.
The Medical Power of Attorney does include a HIPAA authorization. But, the Medical Power of Attorney does not allow you to view medical records or consult with your child’s doctors unless he is incapacitated. If your child’s doctor does not believe he is incapacitated, you will not have access to medical records under the Medical Power of Attorney.
By having your child sign a HIPAA Release before leaving for college, you ensure that you have authorization to deal with doctors and discuss your child medical diagnosis, as well as treatment options.
These three documents are relatively inexpensive. They are also easy to prepare. If your child is preparing to go off to college, you should discuss with him the need for these three documents. Obviously, you hope you never need them. But, it’s much better to have them and never need them than to need them and not have them.
A Directive to Physicians is more popularly known as a “Living Will.” It is a document that instructs your physician not to use artificial methods to extend your life if you have a terminal or irreversible condition. Stating your wishes in advance of such a diagnosis reduces the possibility of family conflict and spares your loved ones these difficult end-of-life choices.
Requirements for a Directive to Physicians
You may execute a written Directive to Physicians as long as you are competent. You must sign the directive in front of at least two witnesses who are also competent adults.
At least one of the witnesses cannot be:
- A person you have named to make health care treatment decisions for you. A person related to you by either blood or marriage.
- A person who is a beneficiary of your estate.
- A person who has a claim on your estate.
- A person who is your attending physician.
- A person who is employed by your attending physician.
- A person who is an employee of a health care facility where you reside if that person is involved in providing for your direct care as a director, officer, partner, or business office employee of the health care facility or its parent organization.
Rather than signing your directive in the presence of witnesses, you can sign it in the presence of a notary public who then acknowledges your signature. If your directive to physicians is properly signed in the presence of witnesses, it is effective even if it is not notarized. Neither your doctor nor any health care facility may require that your directive be notarized.
During my initial consultation with clients, I always discuss the various documents that should be part of a comprehensive estate plan. As I explain the purpose of each document I find that the Directive to Physicians, also known as a Living Will, generates the most discussion. It’s also the document clients have the most difficulty signing.
The reason this document creates such a “flurry” of discussion is that it forces you to consider that one day you may be hospitalized in an unconscious state with no hope of recovery. And, it puts you in the position of deciding before that happens how and when to end your life. Thinking about issues like this can and should make you think deeply and ask a lot of questions.
What Are Your End Of Life Wishes?
Most people will agree that they don’t want artificial means to be use to keep them alive if they are significantly brain damaged and won’t be able to live a meaningful life. But, in reality, the circumstances are not always clearly black and white. Let me use two examples that illustrate the complexities of the issues.
The Case of Shellie Eldredge
The first case scenario involves Shellie Eldredge, a young mother who slipped into a coma after a moped accident in Hawaii broke nearly 50 of her bones, fractured her skull, snapped her spine and left her in a coma. Her doctors didn’t expect her to recover and even recommended stopping life support. Her husband, however, chose not to follow the recommendation. That turned out to be a great decision. After about a month in the hospital, Shelli recovered enough to go home.
The Case of Edwarda O’Bara
Shelli Eldredge was fortunate. Many people with severe brain injuries and in a coma never recover. Edwarda O’Bara is an example. She slipped into a diabetic-related coma when she was only 16 years old. Her parents cared for her in their home, feeding her through a tube until they died. After their deaths, her sister took over caring for her. She lived for 42 years in a coma and then died.
Using a Directive to Physicians to Communicate Your Wishes
The Directive to Physician allows you to state your preferences with regards to life-sustaining treatment. In it, you state whether you want your doctors to give, withhold or withdraw life-sustaining treatment if you are diagnosed with a terminal or irreversible condition and are unable to make your own health care decisions.
You get to decide, in advance, whether you want doctors to withhold all treatment other than that required to keep you comfortable, or alternatively, whether you want to be kept alive in your condition using available life-sustaining treatment.
Terminal and Irreversible Conditions
The Directive to Physicians allows you to state your preferences in two situations. The first situation addresses what you want to happen if are diagnosed with a terminal condition. The second situation addresses what you want to happen if you are diagnosed with an irreversible condition.
A terminal condition is defined as an incurable condition that will produce death within six months even if life sustaining treatment is given.
An irreversible condition is defined as a medical condition that:
- May be treated but is never cured or eliminated;
- Leaves a person unable to care for or make decisions for himself; and
- Is fatal without life-sustaining treatment.
The section dealing with irreversible conditions is the one that gives many people pause. Section 166.033 of the Tex. Health and Safety Code, the statute authorizing the form for a written directive, explains it in this way:
“Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer’s dementia may be considered irreversible early on. There is no cure, but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments. Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die. You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome. This is a very personal decision that you may wish to discuss with your physician, family, or other important persons in your life.”
The important thing to remember about the Directive is that it only becomes effective if you become incapacitated and are unable to make these decisions for yourself. And, you can revoke the Directive at any time, even if you are incapacitated, as long as you are able to communicate your wishes in some way.
Why Sign a Directive?
Signing a Directive is a difficult decision but it puts you in control of your end of life treatment by allowing you to specify in advance what life-sustaining treatment you will receive.
Consider the Edwarda Obara’s story previously mentioned. I wouldn’t want to live like that, would you? But, I wouldn’t want my family to end my treatment too soon either. I want my family to give me every possible chance to recover like Shelli Eldredge’s family did for her. But, if my condition is such that I will never be able to live a meaningful life, I know in advance that I don’t want to be kept alive artificially in a state of unconsciousness for decades. This is especially true in light of recent studies suggesting that some people living in vegetative states are actually conscious. Can you imagine being conscious but trapped in a body that can’t move or communicate for a lifetime?
Signing a Directive to Physicians relieves your family of the burden of making that choice on their own. Should your family disagree about how to proceed, having a directive from you can prevent family conflict.
Making your Decision
Deciding the time and circumstances for withdrawing or withholding life-sustaining treatment is a deeply personal one. It deserves serious thought and consideration. I recommend that my clients talk to people they trust before making such a decision. I specifically recommend they seek counsel from family members, physicians and clergy.
But, remember that the Directive is not written in stone. If you do change your mind about any aspect of it, you can revoke it completely or revoke it and sign a new one that is more in line with your new wishes.
A Durable Power of Attorney allows you to appoint another person to make financial and other non-medical decisions for you if you become incapable of making those decisions for yourself. It is called “durable” because it does not terminate if you become incapacitated or disabled like a “regular” Power of Attorney does. A Durable Power of Attorney can take effect at the time you sign it, or it can “spring” into effect when you become disabled or incapacitated.
Authority You Can Give with a Durable Power of Attorney
The person you appoint to act for you is called your agent or “attorney-in-fact.” You choose exactly how much authority to give your agent. It can be a lot of authority or only a little authority, depending on your needs and desires. For example, you can give your agent the authority to act for you in any or all of the following ways:
- Pay for your support and care
- Borrow money in your name
- Conduct bank transactions on your behalf Handle your real property
- Handle legal claims on your behalf
- Access your safety deposit box
- Deal with your insurance and retirement benefits Prepare and file your tax returns
- Exercise your stockholder rights
- Contract for services
- Make gifts to others
- Collect your Social Security benefits
- Perform unspecified, non-medical tasks
Legal Requirements for a Durable Power of Attorney
To be effective in Texas, the Durable Power of Attorney must:
- Be in writing
- Be signed by an adult
- Name an agent or attorney-in-fact
- Must specifically state that the agent’s authority either continues after you become disabled, or that it begins when you become disabled
- Be acknowledged by a Notary Public
Your agent has broad authority to act for you. It is, therefore, important that you select someone you completely trust to act in your best interest when you execute a Durable Power of Attorney.