While estate planning is likely not a top priority for most individuals in the current environment, one document remains crucial to possess in the midst of a pandemic – the health care power of attorney. This is a generally pro-forma document included with most estate planning engagements that may be given minimal thought or attention at the time. But in the midst of a large-scale national public health crisis, most individuals over age 18 should locate or consider implementing this one simple yet valuable legal instrument.
A health care power of attorney permits an individual to appoint someone – an “agent” – to make medical decisions on his or her behalf when the individual is otherwise unable to do so, perhaps due to incapacity or inability to communicate. Equally important, the power should include specific permission to the health care provider (physician or other caregiver) to discuss protected health care information with the designated agent in compliance with HIPAA.
Example: A college student over the age of 18 residing in another city falls ill and is admitted to the hospital. The parents are notified that their child is in the hospital, but absent a specific release in a health care power of attorney, the physician may not be able to discuss any of the particulars of the child’s situation, including ailment, condition, severity, etc. Imagine the stress these unknowns can place on family members during their journey to the hospital.
For individuals who have not created such a document but now wish to do so:
• An attorney is the best option to have a document prepared in compliance with state law, as well as to ensure proper formalities in execution. Of course, it may be difficult or impossible to meet in person to sign and notarize the power. Note that many states have recently adopted E-notarization standards that enable a document to be notarized electronically. The attorney can provide additional guidance on proper execution in light of current events.
• Most states also include a “statutory form” document that can be taken straight from the state statute (usually available online) and serves as an acceptable power of attorney in most respects. In fact, most forms provided from attorneys use such language verbatim.
• The American Bar Association website has a potentially useful summary of state health care power of attorney statutes here: State Health Care Power of Attorney Statuses.
In light of the current national health care emergency, many planning concerns come to mind. As a first step, it may make sense to prioritize a focus on one’s health care power of attorney.
Brooke Zrno Grisham, ChFC®, CLU®, AEP®, is a Vice President at New York Life and Chief Executive Officer of The Nautilus Group®, a membership-based resource accessible to a group of approximately 200 experienced agents and financial professionals affiliated with New York Life.
The Nautilus Group® is a service of New York Life Insurance Company. Nautilus, New York Life Insurance Company, its employees or agents are not in the business of providing tax, legal or accounting advice. Individuals should consult with their own tax, legal or accounting advisors before implementing any planning strategies. © 2020 New York Life Insurance Company. All rights reserved.