An Advanced Health Care Directive (AHCD) is one of the most important documents everyone over the age of 18 must have because of how stringent the laws have gotten over the years. President Bill Clinton signed the Health Insurance Portability and
Accountability Act (HIPAA) into law on August 21, 1996, and it’s been periodically updated ever since. The goals of HIPAA are to protect health insurance coverage for workers and their families when they change or lose their jobs (portability) and to protect health data integrity, confidentiality, and availability (accountability).
History of AHCD
Unfortunately though, these laws have become unduly obstructive and are having unintended consequences that can only be avoided by having a valid AHCD. Because of HIPAA, it is illegal for doctors to give medically identifiable information about you to anyone, including your spouse and adult children, without your consent.
Prior to HIPAA, doctors were free to give information to whomever requested it. An AHCD was only needed when you wanted to direct the doctors in caring for a loved one. Under the current version of HIPAA however, medical personnel cannot legally tell anyone else about your condition without your expressed consent. The implication of this is that you may not be able to find out how your loved one is doing if they are in the hospital! Doctors can be fined or jailed for giving this information to you. Having a valid AHCD solves this problem and will allow them to speak freely with you.
An AHD not only allows doctors to inform you about your family member’s condition, it also allows those family members to give feedback to the doctors regarding your care. If the doctors want to perform a procedure that you know your loved one would not want, you will be the one to make those decisions, not the doctor.
How does an AHDC Work?
When you work with an attorney to draft an AHCD, you will decide whom you want to act on your behalf when you are unable to do so. You will also decide how you want to be treated if you are on life support. Do you want to remain on life support for as long as possible or would you rather be removed if there is no chance of recovery? You will state this in your AHCD. Additionally, you will also state whether you want to be an organ donor and if so, for what purpose.
Example of Unintended Consequence
I want to give you a personal example of an unintended consequence of the HIPAA laws. During the time of the COVID crisis when mandatory negative COVID tests were required
to travel or to participate in other events, my wife and I agreed that we would meet at a clinic to get a test. When I arrived, I asked the nurse if my wife had shown up yet. The nurse’s response was that she cannot tell me because of the HIPAA laws.
I texted my wife that I was there and she replied that she was already in exam room number 1. When I relayed this information to the nurse, the nurse told me that she cannot confirm this information and that my wife would have to come get me!
The above consequence was very minor. What if my wife had been in a major accident though? I can’t imagine how I would feel if I had rushed through the doors only to be told that they can’t even confirm if she is there or not! I’m certain that the HIPAA laws were not trying to prevent me from getting medical information about my wife but this is exactly what happened.
Let me run another story by you though where a properly executed AHCD had been set up. I met with a couple around 15 years ago and they shared a catastrophe that had
happened years earlier. The husband and wife had been boating and when they returned to the dock, the wife’s leg slipped off of the boat and got caught between the boat and the dock. She fell into the water and had to be rescued by medical personnel who took her to the ER.
After loading the boat onto the trailer, the husband hurried to the hospital only to be told by the doctors that they may need to amputate his wife’s leg. He knew that she would not want this and ordered them not to do so. Because he was able to present a properly executed AHCD, he had the authority to direct the type of medical care that his wife would get, not the doctors. He knew that his wife would rather take the chance of not living than have her leg amputated. When they met with me, not only was she alive, but she still had her leg! All because they took the time to draft an AHCD before they needed it.
Please do yourself and your loved ones a favor; take the time to have an estate planning attorney set you up with an AHCD that reflects your wishes. If you have kids over the age of 18, make sure they each have one as well.
If you don’t have an attorney and you live in the state of California, feel free to reach out to us as we’ll be more than happy to help you.
Contact us today so we can assist you with this crucial document.