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HCDs—Good for Your Future

Columnist: Susan M. Teel
March, 2011 Issue
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Susan M. Teel
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California Advance Health Care Directives (HCDs)—authorized under California law since 1999, sanctioned by federal law in 1990 and required by most hospitals during the admission process since the 1990s—remain among the most essential, yet overlooked and (recently) maligned estate and life planning documents.

Take my dear friend, Rick, who at age 52, recently suffered a debilitating stroke. Always the picture of health, with a bodybuilder physique, a keen intellect and an ever-ready joke, his emergency devastated family and friends. How could such an unexpected event touch so close? As the need for action became acute, we discovered some sobering facts.

Rick, CEO of a fast-growing, successful East Bay firm, never engaged in much personal planning for the future. The company affairs, by contrast, were well-tuned.  

Rushed to the ER in the back of the ambulance with her vulnerable husband was Sharon, Rick’s wife. Sharon was clueless as to Rick’s wishes for health care. Would he be willing to undergo experimental drug therapies to possibly save a few diminished brain cells? How aggressive would he want to be in electing post-op institutional convalescent treatment plans? Would he be more comfortable in a home visit program? Could she make decisions regarding elective surgery? What if he slipped into a coma? Did he have any feelings about use of artificially administered nutrition and hydration? These were all gory decisions they’d never discussed. Sharon also had no idea what extent of spiritual support Rick might wish to have during the crisis, or who he’d want to step into her place as decision-maker for him, if she suddenly was also incapacitated.

If Rick and Sharon had prepared HCDs, or even generally discussed these issues, her stress level would have been reduced as she faced the onslaught of questions posed by the emergency team and ER triage staff. As she discovered, the worst time and place to make such decisions is during the crisis.

HCDs, also referred to as Advanced Care Planning (ACP) documents, have recently been demonized and subjected to politically motivated misinformation and ridiculous exaggerations. Unfairly characterized as tools of secret government “death panels,” excuses for “bureaucratic intervention into the private lives of citizens” or steps in the direction of legalizing euthanasia, many thoughtful people have understandably shied away from their use out of ignorance of their actual purpose and application.

Far from rising to any of these distorted levels, HCDs create a personal, medical emergency preparedness plan (a concept we’ve grown to expect from cities, airplanes, buildings, schools and neighborhoods). They’re entirely created by the individual and provide specific guidelines for how a named proxy, or “agent,” should make future health care decisions. Usually, a family member or close friend is nominated as agent.

The HCD then provides operating instructions to guide health care decision-making if the individual suffers dementia, falls into a coma state or has a temporary loss of mental or physical capacity, leaving him or her unable to communicate or make informed decisions. The agent may be given full or limited discretion, based upon specific guidelines, and may be authorized to act alone or required to seek advice from others—family members or knowledgeable medical advisers.

Due to recent amendments to the 2010 Social Security Act, effective January 1, 2011, (Section 1233), a Medicare recipient can now voluntarily request a consultation with his or her physician to prepare a HCD, and the consulting physician will be reimbursed by Medicare for the consultation—just as with other covered consultations. Some, but not all private insurers offer similar coverage. A parallel provision was stricken from the Obama Health Care Plan in the final days of its contentious legislative debate, largely due to mischaracterization of HCDs.

As an estate-planning attorney routinely advising and assisting clients in preparing their HCDs as part of elementary estate planning, I’m hopeful this new Medicare coverage will improve the process. I want my clients to have the conversations about emergency medical protocols and end-of-life planning with their physician prior to finalizing the document with me, so their HCDs can include informed directions and incorporate accurate medical terminology and phrasing.

While many physicians have been annoyed by this request, even sidetracking it, most don’t debate the need for consultation. Typically, a physician’s real complaint is that he or she isn’t paid for reviewing or discussing legal documents, including HCDs. By avoiding this consultation, a physician misses an opportunity for important physician-patient communications. These discussions are bound to result in more specific, technically intelligible HCD documents, with fewer boilerplate provisions that fail to incorporate an individual’s specific desires and needs.

The final document should be one that a paramedic, ER staffer or family physician can easily interpret and use as a guide in developing emergency or end-of-life treatment plans. HCDs are not about limiting or rationing health care, hastening death, hospital or government decision-making for the patient or about saving money. They are about preserving a patient’s choices and values and paving the way for possible future health care options. Hopefully, the Social Security legislation will both eliminate the cost barrier to individuals seeking medical advice and provoke private insurers to follow suit.

HCDs are best reviewed and revised periodically, as wishes and needs change. Why not incorporate this review with an annual wellness exam? Further, with the onslaught of HIPAA regulations requiring strict confidentiality of patient records and physician communications, better use of HCDs to clarify a patient’s preconsents to release of medical information and grant of authority for the HCD agent to communicate with health care providers should pave the way for expedited cooperation.

Such planning is only prudent and will benefit everyone.
 

Susan M. Teel is senior counsel at Dickenson, Peatman & Fogarty in the trusts and estates department and a member of its wealth management group. She’s specialized in estate planning, trust administration and probate for more than 25 years. You can reach her at steel@northbaybiz.com.


 

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