Ethan R. Okura and
Carroll D. Dortch
Hawai‘i Herald Columnists
One of the most important things you should do as you work on your estate planning is to authorize someone to make decisions on your behalf should you become incapacitated and can no longer make your own decisions. The person you authorize is called your agent. You can provide your agent with specific instructions that you wish to have carried out should your agent ever need to act on your behalf.
Without that authorization and instruction, your case will have to go to court and a judge will appoint someone to legally make those decisions for you. For any financial decisions, you can designate someone you trust to serve as your power of attorney or by placing your assets in a trust. You can appoint an agent to ensure that your medical and health care decisions are complied with through a document called an advance health care directive, or AHCD.
An AHCD allows you to designate an individual — or individuals — as your agent to make necessary health care decisions for you. Typically, this document allows a doctor or hospital to consult with your agent regarding appropriate treatments, prescriptions, surgeries, medications and rehabilitation that may be available for you. An AHCD also allows you to make end-of-life decisions ahead of time and lets you decide whether or not you want to prolong your life with life support procedures, including artificial nutrition and hydration. All of these decisions will become effective if your doctor determines that nothing can be done to improve your condition and that you will likely pass away soon. You can also decide if pain medication can be given to you even if it might shorten your life.
An AHCD is a very important document to create while you are still healthy and of sound mind. However, it isn’t the only medical authorization document to consider. In Hawai‘i, you can also create a Provider Orders for Life Sustaining Treatment, or POLST. This document is typically obtained from your primary care physician — it can also be obtained from your estate planning attorney or online. It allows you to provide more details regarding your desired end-of-life care and can account for situations before an AHCD becomes effective. The POLST, usually a bright green document, should be placed in a readily visible and accessible place in your home, such as posted on the refrigerator.
The POLST allows you to decide whether or not you wish to receive resuscitation (sometimes referred to as a “DNR” — “do not resuscitate”) should your heart stop beating. It also lets you decide on the types of medical interventions you wish to receive, ranging from “comfort measures only” to “full treatment.” You should consult your physician about these different medical treatments. Like the AHCD, the POLST lets you to decide whether you wish to receive any artificial nutrition and/or hydration. However, unlike the AHCD, it allows you to potentially limit or expand this treatment by specifying a purpose for this type of treatment. For more information on the POLST, visit https://www.kokuamau.org/professionals/polst.
Finally, even though your agent has authority under Hawai‘i state law to make decisions on your behalf with an AHCD, under federal law, your doctors may not have authority to release your medical information to your agent. This is why it’s also important to have a HIPAA Authorization. The Health Insurance Portability and Accountability Act of 1996 allows your doctor and other health care providers to release protected medical information to your agent.
A complete estate plan should include all three documents: an AHCD, a POLST and a HIPAA Authorization. These documents, along with your other estate planning documents, should be revisited and updated at least every few years, if not every year.
© OKURA & ASSOCIATES, 2017
Honolulu Office: (808) 593-8885
Hilo Office: (808) 935-3344
Ethan R. Okura received his doctor of jurisprudence degree from Columbia University. Carroll (Cary) D. Dortch received his doctor of jurisprudence degree from the University of New Hampshire School of Law and clerked for Judge David G. Campbell in Arizona.
The lawyers at Okura & Associates focus their practice on estate planning to protect assets from nursing home costs, probate, estate taxes and creditors.
This column is for general information only. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate planning specialist.
See more articles by Ethan by visiting https://okuralaw.com/blog/