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Health is something that young people often take for granted. Usually it is only as we get older that we become concerned with our health and the costs associated with additional care. Some of us take steps to make sure that we have the proper health insurance and savings to pay for our health costs. But what happens if your health takes a turn for the worst and you cannot even express what type of care that you want? A possible solution to this problem is an advance directive. Even that National Institute of Health advises community members across the country that it is wise to use these legal tools. They note how you can have advance directives with a durable power of attorney, “a document that names your health care proxy. Your proxy is someone you trust to make health decisions if you are unable to do so.”

Feeding Tube Decisions

Since medical decisions are a matter of preference, there can be relief in knowing that your preferences have been chosen before a tragedy occurs. An example of a medical decision that should be made beforehand is whether or not you will want a feeding tube. A feeding tube is often used for patients who have irreversible dementia and have forgotten how to eat. This tube can also be used for patients with “a critical illness, such as Lou Gehrig’s disease, or recovering from stroke, cancer or anorexia.”

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We’ve posted blogs in the past about the importance of executing an advance health care directive. The Advance Health Care Directive can name an agent to make health care decisions for you if you become unable to do that for yourself. Other information that can be included in your AHCD is whether you want organ donation and if so, for what purposes. Common purposes are transplant, therapy, research, and education. If you are interested in being an organ donor, you can also specify on your drivers license that you are a donor.

You also may have heard of Altruistic Organ Donation. This type of organ donation is made while you can still alive. Living donors now comprise 42% of kidney donations. This is the most common type of donation by a living person because we have two kidneys and one can experience a full and normal life with just one kidney. This type of organ donation, when given to a stranger is called “altruistic.” Other organs that can be donated by a living donor are the pancreas, intestine, liver, and lungs.

Scripps Hospital here in San Diego has an altruistic organ donation program as does UCLA. With an estimated 63,000 patients in this country on the waiting list for a kidney and an estimated wait time of over 3 years, altruistic organ donation is on the rise.

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The short answer to this question is just about anyone unless they are a minor. Anyone over the age of 18 can execute a health care directive and they are simple to fill out. The reality of life is that it is often unpredictable. We never know when an unexpected medical crisis may occur.

Most of us remember the case of Terry Schiavo, the young mother who fell into a coma in Florida, resulting in a long struggle between her husband and her parents as to whether she should be taken off life support. Recently in San Diego, the news reported on divorced parents whose son is in a similar vegetative state and they disagree as to what should be done.

Anyone being admitted to a hospital should have a health care directive and in fact most hospitals will request that you provide them with a copy of yours or execute one if you don’t already have one. Certainly seniors and anyone facing serious health problems should have one so that an agent is designated to make health care decisions and there are instructions for health care that set forth your wishes.

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A document called an Advance Health Care Directive appoints a family member or friend to make health care decisions for you if you become physically or mentally unable to make them for yourself. The person you name is called your “Agent” and you usually name back up Agents as well in case your first choice is unable or unwilling to act. These agents will carry out your wishes concerning life support, medication, nutrition, and other treatment options. In the document called the Advance Health Care Directive, you can set forth whatever provisions and perameters you want concerning these types of issues. You can also specify your preferences for burial, cremation, and funeral arrangements and set forth your wishes for organ donation.

It is important that your agent have access to your medical information. As we indicated in the last blog, under HIPAA and CMIA, your medical information is private and a release must be signed by you to allow your agent to access the information. Having the appropriate HIPAA language in your Advance Health Care Directive is important.

The estate planning attorneys at Law Office of Scott C. Soady, A Professional Corporation always include an Advance Health Care Directive in the Revocable Living Trust package for trust clients. If you need such a document (or your adult children need one) we can also prepare them separately. If you have a trust already in place, make sure that this document is included with your trust and also check to see if it contains the HIPAA language. Many trusts which were prepared several years ago may not have the HIPAA language. You also may have a similar document that was drafted years ago called a Durable Power of Attorney for Health Care or a Living Will. These documents also probably do not have the HIPAA language.

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The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

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San Diego is a multi-cultural city with people of various ethnic backgrounds and religions. Our community has such religious faiths as Catholics, Jews, Hindus, Buddhists, Christian Scientists, Jehovah’s Witnesses as well as many other faiths. A person’s religious or spiritual beliefs can have importance for their estate planning, and in particular for their Advance Health Care Directive. Standard form Advance Health Care Directives may need to be tailored for people of certain religious faiths.

An Advance Health Care Directive is a document which allows you to set forth your personal wishes for such things as life-saving procedures, blood transfusions, hydration, nutrition, and life support. You appoint an agent to make such decisions for you if you are unable to do so. A website has information about guidelines for health care powers of attorney for evangelical Christians, Muslim, Hindus, and Buddhists. Catholic guidelines are also available online as well as teachings from Judaism. Sharp Hospital here in San Diego also has a checklist of 25 topics including your religious beliefs to discuss with your agent for health care. You can also ask your Rabbi, Priest, or other spiritual advisor about what beliefs of your faith affect health care and end of life issues.

If you need specific language in your Advance Health Care Directive to incorporate your religious beliefs, the attorneys at Law Office of Scott C. Soady, A Professional Corporation can assist you with that or with any other estate planning issue. Contact us by phone or e mail us at Law Office of Scott C. Soady, A Professional Corporation. Your initial in-house consultation is complementary.

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If your child is now 18, there is valuable information for you and your now “adult” child available for free. There is a publication entitled “When You Become 18: A Survival guide for Teenagers” published by The State Bar of California. This pamphlet can be ordered in print form or downloaded from the bar website and answers such questions as what happens if my 18 year old commits a crime? As parents, are we responsible if our 18 year old injures someone with the family car?

One document every adult child should have is an Advance Health Care Directive to appoint someone to make health care decisions in the event of an incapacity. Once a child turns 18, the parents can’t make medical decisions for their child. If the parents are divorced or separated and disagree on medical treatment, how is it resolved?

Similar to the Terry Schiavo case, there recently was reported the story of a 25 year old single woman who was brain damaged as a result of a dirt bike accident. She had no living will or power of attorney for heath care. Her divorced parents are arguing over a DNR order (do not resusitate order) signed by her mother and whether the mother or the father should be appointed her temporary guardian to make those end of live decisions.

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In San Diego, many residents have had problems with privacy with health care records as well as access to these records. Many San Diego hospitals including Scripps, Sharp, Pomerado and others require the proper forms to be executed to obtain health care records. At our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP, we prepare estate plans which include revocable living trusts. In the revocable living trusts, we have the advanced health care directive which is a component of the HIPAA legislation. If you have any questions regarding this or any other estate planning matter, please contact us by e mail or phone.

Recently, the first-ever federal privacy standards to protect individuals’ health-care information went into effect. The mandate for these standards, collectively known as the Privacy Rule, was in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The Privacy Rule gives individuals access to their medical records and greater control over the use and disclosure of their personal health information. States are still free to keep or adopt their own policies or practices that are at least as protective as the new federal requirements.

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In San Diego, California many residents are in the military. As we know, deployments are common. In light of the recent call to active duty received by thousands of United States military reservists, employers and employees alike need to know their obligations to each other when employees serve in the uniformed services. The reemployment rights of military members were revised by Congress in 1994. The main thrust of the legislation is to guarantee the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.

Estate planning issues always arise and state law is very important in San Diego, California and there is information about necessary powers of attorney. The federal law applies to all Armed Forces members, including the Reserves, National Guards, the commissioned corps of the Public Health Service, and any others designated by the President during a war or an emergency. Employees of both private and public employers are protected when they have embarked on and have been honorably discharged from military service consisting of active duty, inactive duty training, full-time National Guard duty, or absences for fitness examinations. Unlike some other federal employment statutes, the law on reemployment rights of individuals in the Armed Services has no minimum number of employees for there to be coverage.

An employer is prohibited from using a person’s military service or application for such service as a motivating factor in any adverse employment action against that person. Nor can an employer retaliate against an employee who participates in the reporting, investigation, or filing of claims asserting that the employer violated the federal statute.

To receive the benefit of the statutory rights and protections, an employee generally must give the employer advance oral or written notice of military service. Exceptions to this requirement are recognized when giving such notice would be impossible, unreasonable, or contrary to military necessity. One important consideration is the care and protection of minor children left behind and sometimes a guardianship is necessary.

Employees leaving their jobs for military service lasting less than 31 days are entitled to continued health insurance coverage at the same cost, if any, that active employees would pay. An advanced health care directive is really essential for any member of the armed services on deployment in the event they are incapaciated and sent back to the United States under the care of their family. For service lasting more than 31 days, employees may elect to pay for continuation of their health coverage for up to 18 months, or until their reemployment rights expire, whichever comes first. Upon returning to work after military service, an employee is entitled to immediate health insurance coverage, even if returning employees usually face a waiting period.
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