Given the recent outbreak of the coronavirus disease (COVID-19), awareness of and concern for health issues is on the rise. In recent days, JGB has fielded numerous calls from clients who are concerned with the efficacy of their estate plans. One of the most common questions from clients has been regarding the necessary details and procedures for using their Advance Medical Directives (AMDs). For these reasons, I will illustrate the laws and best practices surrounding the use of AMDs.
What Happens If You Have No Plan?
Let’s initially assume that you haven’t taken any steps to identify someone to make medical decisions on your behalf. Rest assured, all is not lost and you will not languish in the hospital with no advocate on your side. Virginia law states the hospital will first take direction from a guardian appointed by the court. With that said, I hope you are never in a situation where a guardian has been appointed because the guardianship process is quite expensive and invasive, and it can be easily avoided by having a proper estate plan.
In this scenario, if you are married, then your spouse can make medical decisions on your behalf under state law. Your spouse cannot act on your behalf if a divorce action has been initiated, even if the divorce has not been finalized. If your spouse cannot make decisions for you, the next in line are your adult children who may make decisions on your behalf by a majority vote, followed by your siblings who also may make decisions by a majority vote. Keep in mind that if your children or family rarely get along when not faced with a difficult and stressful decision, it would be rather foolish to assume they will rise to the occasion for life and death health decisions.
Your medical records are protected by a federal law known as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Essentially, without a proper AMD that incorporates a HIPAA release, your health care agent may be precluded from access to your medical records and condition. Your spouse or loved ones may be able to make decisions for you under state law, but they are still kept from knowing your medical information or details of your condition when making these decisions due to HIPAA restrictions.
A Better Way to Plan
Now that we have addressed the default and least efficient choices surrounding medical decisions, let’s identify what steps you should take. Advance Medical Directives are the best options to identify your chosen health care advocate. A well-drafted AMD will not only appoint someone you trust to make decisions on your behalf, but it will also illustrate your preferences on specific medical procedures. You can have multiple agents in sequential order, or you can choose to have multiple parties making the decision together. It is very rare for professionals like attorneys or banks to act as your AMD agent. It is a common misconception that your physician can and will act as your medical decisionmaker. Your physician typically interacts with and gives guidance to your AMD agent, but your physician does not make the ultimate decision on course of treatment without being granted authority by your AMD agent. The AMD can also illustrate your wishes for cremation, burial, and even organ donation.
The AMD will also outline your preferences regarding the cessation of life-prolonging procedures (such as IV fluids, nasogastric tube, CPR, and intubation). If you are not receiving appropriate or adequate care in your current care facility, a well-drafted AMD gives your agent the authority to move you to another facility better suited for your needs.
Advance Medical Directives are not the same as “Do Not Resuscitate” orders (commonly known as a DNR). An AMD grants discretion to your health care agent to make medical decisions for you and to potentially stop life-prolonging procedures. Conversely, a DNR prevents a hospital or medical professional from initiating life-prolonging procedures in the first place. A DNR order is signed into effect by a physician for their patient, not by attorneys. DNR orders are most commonly used when a patient has a terminal illness or are of such an advanced age that life-prolonging procedures are not desired. A well-drafted AMD will also give authority for the AMD agent to sign a DNR on behalf of someone is who incapacitated where a DNR is an appropriate course of action.
The information provided about the coronavirus can be quite upsetting at times, but you can take control and be legally prepared if you are stricken with this ailment. Simply put, by having your Advance Medical Directive in place, you can ensure that your chosen advocate can work for your best care. We suggest all JGB clients provide either digital or paper copies of your AMD to your primary care physician or to the hospital upon admittance. In doing so, the medical professionals will know who to take direction from in a time of need.
If you have further questions or concerns on this or other related topics, please don’t hesitate to contact our office. Our firm is ready and standing by to give advice and support to you and your family. We plan to be open to assist our clients with their legal needs throughout this crisis. If you prefer to stay at home and connect with us via telephone or digitally, we have a full range of accommodations to meet your needs. We thank you for being valued clients and friends of JGB.
DID YOU KNOW?
Here at JGB we are always thankful for our clients and the wonderful referrals they send us. To show our appreciation, we are hosting a few outings throughout the year.
Our first event will be on May 1, 2020 at 2:30 p.m. at Old Forge Sporting Clays. This is a walking event so wear comfortable shoes. Space is limited. Please contact our office to confirm your spot by emailing bh@jgbllp.com.
Participants:
- You must be a client of JGB who has completed documents with us.
- You must bring your own shotgun and eye protection.
- It is a good idea to bring a pouch to hold your shells when walking the course.
JGB will provide:
- Ear plugs (or you may bring your own)
- 12-gauge shotgun shells. (If your shotgun requires specialty shells or isn’t a 12-gauge, please bring your own shells.)
- 50 rounds of sporting clays
- Food & drinks
Old Forge Sporting Clays
7945 Long Reach Rd, Providence Forge, VA 23140
https://www.facebook.com/Old-Forge-Sporting-Clays-340060434447/
About the Author:
Spencer Baxter is an experienced problem solver who helps individuals and businesses achieve and protect their goals of prosperity, stability, and growth through appropriate planning. Spencer takes great pride in making sure that his work for clients is always reliable, correct, and on time.