It’s a common misconception that estate planning only involves writing up a will or trust. The reality is that no estate plan is complete without healthcare directives. Specifically, a healthcare power of attorney (HPOA) spells out your health wishes for any scenario in which you are unable to communicate them yourself (i.e., you are incapacitated). We have written several blog posts about the importance of healthcare directives, but this one is a deeper dive into what medical decisions a HPOA actually covers.
Selection of an Agent
The first and foremost aspect that a HPOA covers is the appointment of a health care agent. Your agent is the person who is responsible for making and communicating your health care decisions with your medical providers. On your behalf your agent can consent to or refuse medical care, authorize admission to a hospital or other facility, and coordinate compensation for medical services you receive. They often also have access to your personal healthcare information that is protected by HIPAA.
Autopsy and Organ Donation
A HPOA also allows you to spell out your wishes regarding autopsy and organ donation. You can specify whether you explicitly approve or disapprove of having an autopsy performed, or you can leave this decision for your agent depending on the circumstance of your passing.
For organ donation, you can decide whether you would like to be an organ donor and to what extent. You can specify which parts or organs you would like to donate, or you could donate any needed parts or organs. There is also an option to donate parts and organs for research, and even commit to donating your entire body for research. This range of options gives you the ability to dictate how you would like your organs to be used so you can be comfortable with the decisions you are making. Of course, you can also always choose not to be an organ donor.
Visitation and Contact
This is a special consideration that we added to our HPOAs in light of a relatively recent change in Arizona law regarding visitation rights. This portion allows you to authorize your agent to either approve or deny visitation from those with whom you have a significant relationship.
Let’s say your daughter is your agent, and you have an estranged brother who wishes to visit you in the hospital. The default rule under Arizona law may very well require your daughter to allow your brother to visit you, despite the strained relationship, unless she gets a court order allowing her to exclude him. The HPOA prevents the need for an agent to get a court order. Sometimes, even without the complicated family dynamic just mentioned, our clients want their agents to have the flexibility to decide this issue without court involvement.
However, if you aren’t comfortable giving your agent the ability to exclude visitation, you can elect to keep the default rule which is generally to allow visitation from anyone with whom you have a significant relationship.
Nomination of Guardian
The alternative process when you haven’t executed a HPOA is the guardianship process. This is the court process of appointing a guardian to manage your healthcare needs. This process can be expensive and time consuming. If, however, a guardian is still needed despite there being a HPOA in place, your HPOA can specifically nominate your agent to serve as your guardian. This ensures you have a voice in the guardianship process if the need arises.
Funeral and Disposition Wishes
The HPOA also has a section that allows you to specify whether you wish to be buried or cremated. We can expand upon these wishes by including a separate Final Disposition Instructions document which provides greater detail about these wishes, such as where you would like to be buried or have your ashes scattered.
Concluding Thoughts
Just because you have a will or trust in place does not mean you have all your bases covered. A complete estate plan will protect you not only in death but during incapacity as well. Having a HPOA in place is a great way to bolster your estate plan and ensure that it is adequately protecting you during life and after death. If you would like guidance on creating a HPOA, you can schedule a consultation with us to get started!