Health Care Planning
We define Estate Planning as follows:
“I want to control my property while I am alive, take care of me and my loved ones if I become disabled, and give what I have to whom I want, the way I want and when I want. Furthermore, if I can, I want to save every last tax dollar, professional fee, and court cost legally possible.”
However difficult it may be to discuss, planning for disability is a critical part of estate planning. It should include the following custom designed legal instruments.
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A living will is a directive to your physician which states that you do not want “extraordinary means” employed to keep you alive should you be I a terminal condition or a persistent vegetative state. This will not only relieve your family or trustee of the burden of applying to the courts to make this decision but also relieve you family from having to make this decision at all. This decision also affects your overall estate plan because you cannot estimate the length of time or the cost of employing “extraordinary means” until you succumb to your final illness or injury. Your living will s always valid as long as you signed it voluntarily and you do not rescind it or declare it void. Your original living will should be kept in a safe place that is easily accessible (not a safe deposit box, which cannot be opened at night or on weekends). There are national services that can store your living will and other health care documents for 24×7 availability.
Beyond expressing your wishes as to life-sustaining issues, you may also express your wishes regarding courses of medical treatment. In a Health Care Power of Attorney, you name your health care agent to make medical decisions for you if you are unable to communicate. Decisions that a health care agent may be called to make include: 1) picking your doctors, 2) picking your treatments, 3) picking your level of pain control, and 4) carrying out your living will.
Your Health Care Power of Attorney should state whether the terms of you living will or the direction provided by your health care agent control if there is a disagreement. Some clients prefer that the terms of the living will control to reduce the decisional burden on the health care agent while others state that the circumstances can not be anticipated and I trust my health care agent to make the decision I would want and I want to relieve them of that decision. Your Health Care Power of Attorney should also name a successor agent in case the first named agent is unwilling or unable to act. All Health Care Powers of Attorney should also contain a HIPPA release allowing your health care providers to talk to you agents.
We also recommend using a Standalone HIPPA authorization. This allows you to name additional parties who may communicate with your health care providers in addition to the agent(s) you have named as decision makers in your Health Care Power of Attorney. Another reason for a Standalone HIPPA is that the authority of your Health Care Agent extends beyond your death. If you want your fiduciaries to access your health care records to ascertain the circumstances of your death without a probate process that can be done through a Standalone HIPPA Authorization.
In Colorado, an order limiting treatment can be obtained after consultation through a physician/advanced practice nurse/physician assistant under Colorado’s Medical Orders for Scope of Treatment (MOST) statute (C.R.S. 18.7).
On the MOST form, individuals may refuse treatment, request full treatment, or specify limitations. The bright green MOST form is designed to be easily and quickly understood by patients, health care providers, and emergency personnel. It is primarily intended to be used by the chronically or seriously person in frequent contact with health care providers or already residing in a nursing home. The Medical Orders for Scope of Treatment “travels” with the patient and must be honored in any setting: hospital, clinic, day surgery, long-term care facility, hospice or at home.