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Time to update a health care proxy?

Key takeaways

  • Most people should have 3 key health-related legal documents in place: a living will, a health care proxy, and a HIPAA authorization.
  • When naming a health care agent, think about whether the person (such as a spouse/domestic partner, adult child, or trusted friend) has the emotional capacity to carry out your wishes.
  • You may be able to execute estate planning documents while you shelter in place at home. Work with your attorney to determine how much of the estate planning process, such as document execution and notarization, can be done digitally or remotely.
  • Consider drafting health care proxies for all members of your family, including adult children.

The COVID pandemic has reminded us all just how important our health is—and making sure we have the right plans in place for ourselves and our loved ones should we fall ill.

"Turning the responsibility for making key health decisions over to a loved one can be particularly challenging for many people," advises Michael Christy, vice president, advanced planning at Fidelity. "But planning in advance can help provide peace of mind to everyone involved."

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3 health-related legal documents everyone needs

Generally, when it comes to making important health care and "life or death" decisions, the following key legal documents should be available to the family to ensure that your loved one's wishes are carried out:

1. Living will
2. Health care proxy (or HCP, also sometimes called a health care power of attorney, or POA)
3. HIPAA authorization

What is a living will?

A living will allows someone to state their wishes regarding certain kinds of medical treatments, as well as life-prolonging and end-of-life procedures. This document typically takes effect if someone cannot communicate their own health care decisions.

What is a health care proxy?

A health care proxy grants authority to another individual to make medical decisions on a person's behalf when that person is not able to communicate decisions on their own. The health care proxy ends when the person granting authority revokes it, or dies.

The individual whom the health care proxy (HCP) grants authority to make medical decisions is called the health care agent.

What is a HIPAA authorization?
A Health Insurance Portability and Accountability Act (HIPAA) authorization is a legal document that allows an individual’s health information to be used or disclosed to a third party, typically the individual named as health care agent. This waiver can be customized to some extent, allowing for sharing some information while keeping other information private.

Getting your health care documents in order:

  1. Locate your health care proxy, living will, and HIPAA authorization (and if you don’t have them, get them drafted).
  2. Confirm that the documents still reflect your wishes. Some questions to ask:

    - Is the named health care agent still appropriate? - Do you have back-up or alternate health care agents in case something happens to your designated health care agent?

  3. Review the documents to see if they need to be updated to reflect current circumstances. For example:

    - Consider whether you want life-prolonging medical treatment used if a recovery is unlikely. - Consider an update to the definition of "medical treatment" to specifically include the maintenance of respiration, nutrition, and hydration by artificial means. - Consider the definition of "extraordinary measures" and whether they might make sense under certain circumstances, such as the use of a ventilator in treating COVID-related illnesses. - Consider adding language for how your health care agent can communicate with medical staff and whether email, video conference, and other means of communication are acceptable.

Tip: Many estate planning attorneys now offer video meetings to assist clients with the process of reviewing and updating documents.

7 HCP best practices

  1. Think about whether the person you name as a health care agent (a spouse/domestic partner, adult child, or trusted friend) has the emotional capacity to carry out your wishes.
  2. Discuss the HCP provisions with family. Talk with the health care agent and your family members specifically about your wishes about ventilators and respirators.
  3. Put a copy of the HCP on file with primary care doctors' offices as well as local or preferred hospitals; see if they are able to accept the HCP electronically and update your patient record ahead of admittance; provide updated copies when changes are made.
  4. If you are hospitalized, give a copy of the HCP to the hospital admitting clerk upon admission to the hospital and have your health care agent bring or send a copy as well.
  5. Keep a small card in your wallet stating the fact that you have an HCP; provide the name and phone number of the health care agent.
  6. Be sure that the forms you sign upon admission to the hospital align with your wishes.
  7. Keep the HCP easily accessible (in a home safe rather than safe deposit box) or electronically in FidSafe®.

Authorizing your legal documents

Financial services firms, including Fidelity, are reviewing online signature and notarization policies and procedures to better accommodate the remote execution of documents, including powers of attorney.

Tip: Check with your attorney to see if there is an option for online execution including notarization. You may be able to scan or fax documents to the notary public and then receive a notarized copy in return.

Align your HCP with your estate and financial plans

"Planning ahead is vital to helping your family find the information they may need especially during the uncertain times we're all living through," says Christy. "You should prepare and securely store a current inventory of key assets, a contact list of advisors, and a list of legal documents and other key information."

"Be sure to review the beneficiary designations on life insurance policies, retirement plans, and taxable accounts, and review the titling of the assets with the family's tax advisor and estate planning attorney to make sure they are aligned with your overall financial plan," he adds.

In hiring a qualified estate planning attorney, look to identify several candidates and speak with each of them to assess how well they fit. Be sure to ask each for an estimate of cost and what is included.

With COVID still a public health concern, now may be a good time to hold a family meeting to lay the groundwork for a solid estate plan, including the addition of health care proxies for all family members, to help manage expectations for all involved. This should include adult children, since parents otherwise normally do not have the right to make health care decisions for such children.

Tip: For guidance on selecting an attorney to work with your family, read Viewpoints on How to find an estate planning attorney and access the Fidelity Estate Planner®.

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Fidelity does not provide legal or tax advice. The information herein is general in nature and should not be considered legal or tax advice. Consult an attorney or tax professional regarding your specific situation.

The Fidelity Estate Planner is not an attorney referral service. When applicable, participating attorneys, or their respective law firms, have not paid a fee or compensation to be included or listed in the Fidelity Estate Planner, nor does Fidelity receive any fee or compensation for providing the law firm and attorney contact information to its customers.

Fidelity does not recommend or endorse any law firm or attorney listed in the Fidelity Estate Planner. Fidelity is not assessing your legal needs or providing legal advice in the Fidelity Estate Planner. There is no requirement that you select any of the law firms or attorneys in the list. You are free to select any law firm or attorney of your choice. The Fidelity Estate Planner is educational in nature and is not intended to serve as the primary basis of your estate and/or tax planning decisions.

FidSafe is not a Fidelity Brokerage Services LLC service. FidSafe is a service of Fidelity Wealth Technologies LLC, a Fidelity Investments company, located at 245 Summer Street, V8B, Boston, MA 02210.

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