What is a Health Care Directive?

A Health Care Directive (often referred to as a “Living Will”) is written document that enables an individual to direct in advance what kind of health care he wants or does not want in the event he cannot communicate his desires with respect to treatment he receives. Usually, the primary purpose of a Health Care Directive or Living Will is to express an individual’s desire not to receive life-sustaining treatment if he is in a terminal condition or in a persistent state of unconsciousness under which recovery is highly unlikely.

Some states recognize separate Health Care Powers of Attorney and Living Wills.  Other states combine these documents into a single Health Care Directive.

What is a HIPAA Designation?

If you’ve been to a doctor or hospital recently, you’ve been asked to sign a piece of paper titled something like “HIPAA Notice of Privacy Practices.” HIPAA stands for The Health Insurance Portability and Accountability Act, which limits who can see your medical information. Doctors and other health care providers are required by federal law to provide a “HIPAA Notice” informing you of their medical privacy practices and to prove that they have maintained your privacy. HIPAA also imposes penalties on doctors and other health care providers who make unauthorized disclosures of “protected health information” about their patients. The new rules mean that health care providers cannot talk about (or otherwise disclose information about) your medical condition to either your family or your lawyer. While these restrictions are designed to maintain your privacy, they can interfere with your family’s ability to determine whether you are disabled for purposes of durable powers of attorney, advance medical directives, trusts, health insurance policies, disability policies, employment contracts, and other kinds of agreements and legal documents.

It is important that you consider including a HIPAA release or designation as part of your estate plan to ensure that certain persons (and only those persons) can access your medical records.

Even if you already have an Advance Medical Directive or Living Will, it may have been created before HIPAA and not contain the appropriate release or designation. It is important, then, to update these documents to the extent that they no longer meet your objectives.

What is a Living Will?

A Living Will is a form of Health Care Declaration that specifies the nature and scope of medical treatment you either want or do not want in specific situations. See also “What is a Health Care Directive” above.