The Most Important Document in Every Estate Plan

The most important part of your estate plan isn’t about taxes, investments, gifts, or other financial issues.

The priority of every estate plan, for people of every age, is the medical care documents. These documents should be completed even if you’re still considering other issues in the plan. This critical part of the estate plan ensures your care and comfort for the rest of your life.

One benefit of the coronavirus pandemic is that more people realized the importance of the medical care documents. Yet, many people still don’t have the documents or have documents with significant gaps.

There are several options to consider. Some estate planners prepare several documents while others consolidate the elements into one document.

HIPAA Authorization. There was a time almost anyone could learn about a patient’s situation by saying they were a friend or family member. But patient privacy was enhanced under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), creating the need for a simple document that wasn’t even contemplated when I was in law school.

Under HIPAA, information about you can be released by medical providers only to people you specifically authorized to receive it. Each provider can interpret the law differently, so it’s a good idea to have a document authorizing medical providers to discuss the situation with key people in your life.

Fortunately, the HIPAA authorization is simple, and model forms are readily available online. The key is to be sure you execute the form and distribute copies to all your medical providers. Those authorized to receive your medical information should have copies or know where to find them.

Living wills and advance directives. In only a few decades, living wills went from being novel and controversial to being so widely accepted that most states enacted legislation authorizing them and approved sample forms. Yet, more recently, living wills are generally considered obsolete.

Living wills originally were simple statements such as, “If I have a terminal condition, and there is no hope of recovery, I do not want my life prolonged by artificial means.”

Those documents frequently aren’t effective. Often, it can’t be said with certainty that someone has no hope of improvement. There’s disagreement over whether some types of care, including feeding and hydration tubes, are artificial life support or a means of providing comfort. Sometimes such care might help someone recover from what otherwise would be a final illness.

To remedy the shortcomings, some estate planners draw up detailed, custom living wills. With clients, they work through questionnaires, sometimes totaling 60 pages or more, of different scenarios. The client decides the decision to be made in each circumstance. There’s an example on the television show Seinfeld.

These advance directives, as they’re often called, also have drawbacks. They can’t anticipate every situation. There can be disagreements about the diagnosis and prognosis. Technology and medical knowledge can change. Third parties don’t always know what a patient is feeling or experiencing, making it difficult to apply the directives.

More significantly, some studies found living wills and advance directives often are ineffective. Medical providers often don’t see the documents until after treatment has been administered. Some care providers apparently ignore the documents because they fear lawsuits. Or if one or more key family members ask for treatment, doctors often comply even if the document indicates otherwise.

At other times, providers interpret the documents one way when other providers or family members have a different view.

Health care power of attorney. Because of the limits of living wills and advance directives, the common practice now is to replace them or supplement them with what’s generally called a health care power of attorney (HPOA) or health care proxy.

An HPOA gives one or more people (known as your agents) the authority to make medical decisions when you are unable to do so. The agents talk with medical providers to understand your situation and the options. Then, they make decisions, perhaps by consulting your wishes in a living will or advance directive.

Ideally, of course, the agents know you well and have a good idea of the course of treatment you would want.

The agents must be available when decisions need to be made, so you might not want to name someone who lives some distance from you, travels a lot, or doesn’t have some scheduling flexibility.

Naming more than one agent can allow people to share the decision-making burden and ensure all factors are considered.

Some people appoint only family members. Others have concerns about their family dynamics or believe better decisions will be made if at least one trusted non-family member is an agent.

When there’s more than one agent, you need voting rules. Do you want a unanimous decision or a majority? You also might want a default rule. For example, the treatment recommended by the lead medical provider is approved unless all the agents agree to something else.

You also might want to authorize one person to make a decision when the others aren’t available, and a decision has to be made. The importance of such a provision became clear during the pandemic when people were forced into isolation, became ill themselves, or couldn’t travel.

The HPOA can be supplemented with a living will, advance directive, or other document that expresses your philosophy and wishes under at least some circumstances.

Your documents can include non-medical instructions. You can state preferences about your environment while receiving care, such as music, grooming, fresh flowers and visitors.

Do not resuscitate/hospitalize. It’s common for older patients, especially frail ones, to have do not resuscitate (DNR) or do not hospitalize (DNH) orders or both.

Research indicates CPR rarely helps these individuals recover and instead makes their passings violent rather than peaceful and natural. Having a DNR prevents futile CPR efforts.

The idea behind the DNH is that at some point hospitalization for every new ailment or development at best only briefly extends a person’s life without improving its quality and might reduce the quality of life.

A person who believes they are in that situation can sign a DNH and ensure they remain in their current residence instead of being hospitalized.

If you have a DNR or DNH, be sure medical providers, especially emergency medical providers, see them. The documents do little good sitting in a file when first responders are making decisions.

Good practices are to have a copy on your person in a wallet, purse, or even a shoe. Some people have bracelets or necklaces with DNR/DNH on them. In many assisted living residences, they’re taped to the back of a resident’s front door or in another prominent place. Be sure others in your life know about the documents. Your regular medical providers should have copies in their records.

A key with all the medical care documents is that medical care providers must know about them and have them available. Your agents and loved ones also need to know about the documents, especially where copies are, and know your general philosophy and wishes.

Most estate planners now prepare one comprehensive document, and many states now have model forms available online.

Several websites offer either the state-approved forms or their own recommended forms. The approved forms for each state are offered at www.caringinfo.org. You also can find sample documents, labeled Five Wishes, from Aging with Dignity (www.agingwithdignity. org; 888-5-WISHES; www.fivewishes. org). Some estate planning software and websites also help prepare documents. Some websites offer free documents, while others charges modest fees.

The documents must be valid in the state where you are present at the time treatment is considered. Some states require two witnesses for a valid document. Others require three witnesses. A few require notarization. If you spend time in more than one state or travel a lot, your documents need to be valid in all states involved, or you need separate ones for each state. A good estate planning attorney can help determine the best solution for your case.

Though I list sources of forms and documents, I don’t recommend that most people complete these on their own. This is part of an estate plan and should be finalized with the guidance of your estate planner.

Keep in mind that most states allow a doctor or hospital to refuse to follow the instructions for reasons of conscience. So, you should discuss preferences and philosophy with your key medical providers.

A useful guide to thinking about these difficult decisions is a booklet written by a former nursing home chaplain that discusses the pros and cons of different choices, including summaries of the scientific research. You probably could benefit from Hard Choices for Loving People, by Hank Dunn (Quality of Life Publishing, 877-513-0099 or www.hardchoices.com; $7).