Monday, December 18, 2017

Patient Advocate Designations 2.0

The Patient Advocate Designation, when paired with the General Durable Power of Attorney, comprise the primary documents in the “here” portion of estate planning. Like the Power of Attorney, the Patient Advocate Designation grants another person (the Designee) the authority to make medical decisions on behalf of the Principal in the event that the Principal is unable to make their own medical decisions because of illness or accident. While on the surface the Power of Attorney and Patient Advocate Designations appear to be similar, there are some important distinctions between the two documents that are worth addressing.
Just as with the Power of Attorney, the Patient Advocate Designation can grant a variety of authority, but for the purposes of estate planning the document will include the authority to make any medical decision, including end of life care decisions, in the event that the Principal is unable to make their own healthcare decision. While it is occasionally useful to provide a Designee with less authority, for practical purposes most Patient Advocate Designations grant broad authority because they are only used in the event that the Principal is unable to articulate their own wishes.
The Patient Advocate Designation normally provides that two physicians must state in writing that the patient does not have the ability to understand and make their own medical decisions. Only after these physicians have confirmed that the Principal does not have the capacity to make his/her own decisions, can the Designee make medical decisions, including end-of-life care decisions for the patient. It is noteworthy that the ability to make decisions regarding healthcare is different from being physically incapacitated. Even if a person is unable to manage their own affairs due to physical incapacity, they may still have the ability to participate in their own healthcare decisions, if they are able to understand their doctors and articulate their wishes.
In order to make informed decisions for an incapacitated patient under any circumstance, it is generally considered good practice to include a release in the Patient Advocate Designation to allow the Designees to receive medical information from medical practitioners and medical facilities that is normally protected by privacy laws. Frequently this release will extend beyond those times when a Patient Advocate is called upon to make decisions so that the Designee can receive regular updates on the Principal’s health, even when they do not need to make decisions.
With a common focus being on a situation where a Designee needs to make end of life decisions, people sometimes lose sight of the fact that a Patient Advocate may also be called on to make decisions regarding long-term healthcare treatment. Such decisions include whether the Principal is able to reside in their own home due to medical risks, what scope of care is necessary to make the Principal comfortable, and where the Principal will live if they do need inpatient care. These decisions can prove to be especially difficult for Designees because they are not things that people generally like to discuss. It is important to make sure the Principal discusses these types of issues with the designee ahead of time if possible.
It is important to fully understand what authority is given in a Patient Advocate Designation before signing the document. An attorney experienced in estate planning should be willing to take the time to review the scope of that document before expecting you to sign anything. This is just one reason why we always remind our reader of the importance of working with an attorney to navigate the estate planning process.

Matt and Al

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