What is an Advance Medical Directive?
Advance Medical Directives for Medical Emergencies
Planning for medical emergencies with an advanced medical directive should be part of every estate plan. An estate plan isn't just about deciding what will happen when you die. It can also be about life.
What is an advance medical directive?
An advance medical directive allows you to specify who you want to make health care decisions for you if a time comes when you cannot make these decisions for yourself. The document may go by different names in different states, such as:
- A medical power of attorney
- Medical directive
- Health care power of attorney
- Designation of health care surrogate
- A durable power of attorney for healthcare
The person you name to make health care decisions on your behalf is referred to as your agent, advocate or surrogate.
An Advance Medical Directive vs. a Living Will
An advance medical directive is not the same thing as a living will. A living will does not give someone else authority to make health care decisions for you if you are unable to make them for yourself. It states your wishes and documents them at a time when your health is not in jeopardy and you're able to express what you would like to happen in the event of a life-threatening emergency. A living will lets you state your wishes about things like resuscitation if your heart should stop, tube feeding and other life-sustaining measures and interventions.
State Laws Govern Advance Medical Directives
All 50 states have their own laws for advance medical directives. They generally provide for the following:
- Who can make an advance medical directive, typically a mentally competent person who is over the age of 18
- What minimal provisions an advance medical directive must contain to be legally enforceable
- Who can and cannot be named as an agent, advocate or surrogate
- What formalities must be observed when an advance medical directive is signed, such as if witnesses must be present
- Who can and cannot witness the signing of an advance medical directive -- many states prohibit health care providers
Because of these strict state law requirements, it is important that you ask an estate planning attorney to assist you with preparing and signing your document.
Complying With HIPAA Rules
Your advance medical directive must contain provisions to comply with the federal Health Insurance Portability and Accountability Act of 1996 or HIPAA. Some states, such as California, have also enacted their own laws that are similar to HIPAA and these must be met as well.
Although HIPAA was enacted in 1996, Congress did not promulgate the rules that govern HIPAA compliance until 2001. If you have an advance medical directive but the document was created before 2001, it may not be HIPAA-compliant. You will have to redo the document to ensure that it works as you expect it to.
NOTE: State and federal laws change frequently and the above information may not reflect the most recent changes. Please consult with an attorney for the most up-to-date advice. The information contained in this article is not legal advice and it is not a substitute for legal advice.