Introduction If you are planning your estate or dealing with the care of an elderly or disabled relative, you should consider what medical documents could help your situation when you consult with your attorney. This brochure summarizes the major medical documents used in Oklahoma and how they can be used in practical terms.
Under the Uniform Durable Power of Attorney Act, Title 58 O.S. Sec. 1071. 1, et. seq., a person may give an agent the power to act for them. This agent is known as the "attorney-in-fact". This document must be signed before a Notary Public and two adult witnesses who are not related by blood or marriage to the principal. The language in the document must state that the power to act given to the attorney-in-fact will endure past the time the person signing it becomes incompetent. It must state that the durable power intended as a durable power of attorney given under the provisions of the Act and "shall not be affected by subsequent disability or incapacity or lapse of time". This Uniform Act has been adopted by many states, including Oklahoma.
It is important to know when this Power of Attorney becomes effective. Sometimes they are effective immediately upon signing or at a future date when the principal becomes disabled or incapacitated.
The Durable Power of Attorney document should reference that the person giving the authority to the attorney-in-fact "waives the restriction imposed by the Health Insurance Portability and Accountability Act, (HIPAA)," which means a person consents to the disclosure by their physicians to the attorney-in-fact the listed medical records. Without this waiver, many physicians and hospitals will not accept a Durable Power of Attorney document.
If you become physically or mentally incapacitated before death and the power of attorney contains the authority to make medical decisions, the attorney-in-fact appointed under this document can consult with your doctors, nurses, and hospital about your care. They may authorize treatment, surgery, testing and decide about nursing home and other care issues. Our Trust Department considers this document a crucial part of every estate plan.
The second document dealing with medical care is the document often called "the living will", but properly called the Advanced Directive for Health Care as given effect by the Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act, Title 63 O.S. Sec 3101.1 et. seq. When two physicians decide that a patient is either persistently unconscious (i.e. vegetative state) or suffering from a Terminal Condition as defined in the Act (i.e. a condition that will cause death within six months), this document becomes effective. The individual signing the Advanced Directive must answer a series of questions dealing with their care and treatment under these circumstances, as well as appoint a Health Care Proxy (another Agent) to consult with the physicians and enforce the Advance Directive. It is most helpful from a practical standpoint for the Health Care Proxy to be the same "agent" as the person appointed in the Durable Power of Attorney. Oftentimes a second agent is named in both documents in case the first named agent is unavailable or has predeceased the patient.
If you or a family member has failed to address the issues of future incapacity problems when your or their estate plans were prepared, please discuss them with your attorney now. Without the proper legal documents, sudden and severe medical conditions may receive delayed treatment and guardianship proceedings may have to be instituted by the patient's family and attorney. If the patient has failed to plan ahead, a guardianship petition may have to be filed in the district court in the county where the patient resided to deal with health issues and manage assets, pay bills, etc., while the patient is incapacitated. These are called "Guardianship of the Person" (meaning health care and living arrangements) or "Guardianship of the Estate" (which means asset management prior to death). Once a court-ordered guardianship is in place, an annual report must be submitted updating the court on the patient's care and living arrangements. If the guardianship is for the person's asset management too, then an accounting must be filed annually with the court which summarizes the income and expenses. This is usually more expensive than other asset management methods, like a trust or even a Durable Power of Attorney.
Consider these medical documents as an addition to your estate planning documents, like your will or trust agreements. Most attorneys who do estate planning will include these medical documents in their discussions with you about your personal situation and needs. Be sure to review carefully who you want to list as your attorney-in-fact in the Durable Power of Attorney as well as your Health Care Proxy in the Advanced Health Care Directive. Consider carefully who will be named as the second person listed in case the first person named is unavailable.
Remember, your documents need to include the HIPAA waiver, or they may not be accepted by the medical professionals.
Our experienced Trust Officers can review your estate planning options in a free, one-hour conference. We do not draft legal documents and you will still need to consult your own estate planning attorney. Call us to make an appointment.
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