The Difference Between an Advance Health Care Directive and a HIPAA Authorization

A common question: What is the difference between an Advance Health Care Directive and a HIPAA Authorization? Do I need both? Is one more important than the other? How do these documents work together and with my Living Will? Who should I include in these documents, and what do I do with them once they are created?

An Advance Health Care Directive (AHCD) is a vital document to a complete effective Estate Plan. It is essentially a power of attorney, but for medical decisions instead of financial and business decisions. In it, you appoint a person of your choosing – a family member, trusted friend, or Licensed Professional Fiduciary – to make health care decisions for you if you were unable to make those decisions for yourself. We strongly advise our clients to have at least one or perhaps two back-ups, just like you would for your Durable Power of Attorney. These named individuals serve in the order in which you have named them.

It is inadvisable to have a “committee” of your loved ones serving together becaue legal problems will arise if disagreements occur. Your appointed Health Care Agent should be a person who will be sensitive to the opinions of the rest of the family and loved ones, but ultimately that one person should be in charge of what decisions will be made on your behalf.

On the other hand, your HIPAA Authorization is not a power of attorney, and in this case you may name as many individuals as you choose. The purpose of this document is for you to waive your strict right of privacy under Federal law regarding your medical information to those individuals, and only those individuals, that you have chosen. It allows for your parents, siblings, adult children, trusted friends, and spiritual advisors to be given information regarding your medical condition in the event you were hospitalized. This allows for communication to be open between those you trust and your doctors.

Your Living Will is a set of instructions or wishes for end-of-life care to be followed by your medical caretakers in the event that you can no longer speak for yourself. It is an ethical and legal guideline for your Health Care Agent and doctors to follow in the event you are in a vegetative state, an irreversible coma, or terminally ill.

These three very powerful documents work together by opening the lines of communication between your loved ones and your doctors, appointing a Health Care Agent to make decisions on your behalf, ang by making those who care for you aware of your wishes. Planning only for financial concerns is simply not enough; planning for incapacity and medical emergencies is a vital part of your complete Estate Plan.

Once created, we usually advise that you share your Advance Health Care Directive with your name Agent(s), and give copies of the HIPAA Authorization to those who are listed. Also, ask your doctor or hospital to keep copies of your AHCD, HIPAA Authorization and Living Will as part of your medical file. Remember that these are powerful documents, and like any Durable Power of Attorney, your AHCD should be renewed and resigned every few years.

About Paul D. Hunt

If you're a resident of California, and a homeowner, then you should clearly put your home into a living trust. A living trust makes probate unnecessary. (We don't like to say "avoiding probate," because that's misleading!) Probate is very expensive – an average home in Alameda will require a probate fee of about $37,000. Also, probate is very slow, and it's done in public. Our law office is dedicated to getting rid of all of the estate planning myths out there, like the "avoiding probate" myth. We want every family in Alameda to enjoy the many benefits of a trouble-free estate. Come to one of our seminars, or call for a free initial appointment at (510) 523- 2100.
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