By: Tom O’Rourke
Published: December 2020
Concerns about the coronavirus have caused individuals to review their estate plans “just in case”. A common concern is to make sure you have a plan in place to allow somebody you love and trust to act on your behalf with respect to your medical care if you contract the virus. You can do this by implementing a health care directive.
A health care directive is commonly referred to as an advance medical directive, a health care proxy, or a health care power of attorney. It typically includes a HIPAA waiver, the appointment of an agent to act on your behalf, and a living will.
HIPAA refers to the Health Insurance Portability and Accountability Act. This law protects the privacy of your health care information by prohibiting disclosure of this information to anybody other than you or a person you designate. It is essential for the person named as your agent to have access to your medical information and to discuss your condition with your health care providers.
Your health care agent is the person(s) you name to act on your behalf. It may be any adult and does not need to be a relative. Typically, your directive specifies when your agent may act on your behalf and what types of actions he/she may take on your behalf, such as connecting you to a ventilator.
A living will specifies your wishes in the event you are terminally ill and in a vegetative state. Specifically, do you wish to have your life artificially sustained, or do you want life support measures (breathing machine, feeding tube) to be withheld or withdrawn?
A lawyer usually prepares a health care directive as part of most estate plans. Physicians or health care facilities often provide health care directive forms. Such forms are available on the internet, but you should exercise caution in using them.
Tom O’Rourke is of counsel with the firm of Miles & Stockbridge P.C., a full service law firm with offices throughout Maryland, Washington, D.C., and Tysons Corner, Virginia.
He began his legal career with the Internal Revenue Service where he served in the Office of Chief Counsel for a period of 10 years and has been in private law practice since 1983. He regularly represents a variety of clients including individuals, small businesses, and not for profit organizations. He is a seminar presenter for NITP and makes guest appearances on NITP’s ForYourBenefit radio program.