By Elizabeth Wynn
Webster’s dictionary defines procrastination as “the act or habit of procrastinating, or putting off to a future time; delay; dilatoriness”.
When dealing with legal matters, procrastination is probably the number one reason that families do not have a complete or up-to-date estate plan.
May is National Elder Law Month, and for many attorneys, it presents a huge opportunity to pay special attention to certain areas of their practice. For us, it’s just another day at the office, but we like to stress that May is a great time to stop procrastinating and make sure you have the estate planning essentials.
In fact, one of the most important areas to consider in estate planning is not what will happen when you die, but rather what will happen if you become incapacitated because of an illness, stroke, dementia, or other chronic, debilitating disease. Obviously this will be extremely painful for your loved ones. There is not much you can do about that fact. But you should certainly make every effort to relieve or decrease the confusion they will face. It will only take a little planning—while you are able—to make sure YOUR wishes are carried out, and not left to chance.
There are certainly many different avenues you can use to ensure this essential area is well planned. There are differences of opinions among Estate Planning Attorneys on which vehicle should be used to ensure the least amount of complication, expense, and delay. But one thing we can all agree on is the need for an Advance Health Care Directive (AHCD) with HIPAA authorizations.
The Mississippi AHCD includes enhanced living will provisions and a statutory health care power of attorney. The AHCD allows you to appoint someone to make health care decisions for you, but only according to your wishes. It includes your chosen directions about your health care, pain relief preferences, and your wishes regarding end of life treatment, including cardiac resuscitation, mechanical respiration, and artificial nutrition and hydration.
We’ve all heard horror stories of individuals being kept on life support longer than desired or family members fighting over whether to let someone go. In today’s litigious society, it’s more important than ever that you put in place an AHCD to provide comprehensive guidance to your loved ones regarding your care.
You can get a free AHCD form at hospitals and online. However, the ACHD is not complete without separate HIPAA authorizations. HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. You have probably encountered HIPAA at a doctor s office. You must sign a waiver so the doctor can tell your insurance company what procedures were performed, and receive payment for those services.
However, an unintended effect of HIPAA is that it makes your medical information completely private, even from your spouse, adult children or other immediate family members. Unless the health care provider has a specific consent form, they are legally unable to discuss the details of your medical condition with the people who care about you the most.
This is not only for parents and grandparents to consider for themselves, but also for young adults attending college. They need an AHCD with HIPAA authorization to allow the appropriate family members to have access to their protected medical information. You may still think of them as your babies, but the State of Mississippi considers them adults and they are provided with the same privacy protections as you.
A HIPAA authorization will allow the people you have chosen to speak to your health care providers about your condition when you cannot speak for yourself. We give dual HIPAA authorizations in every AHCD we prepare, because we want to make sure your directive will work for you when you need it. Make it easier on your love ones. Do what you can now to ease the confusion and difficult decisions that may have to be made for you some day. If you do not make these decisions now, your family will be forced to obtain the power through an expensive and time-consuming court process.
Maybe we all should take heed in what the English poet, Edward Young (1683-1765) meant when he said, “Procrastination is the thief of time”.