Watch This Lesson
Ask someone what estate planning covers and they will talk about money — the house, the accounts, who gets what. Renee Parris spends a full lesson on the other half, the half that applies while you are still breathing: who speaks for you in a hospital, what they are allowed to say yes to, and whether anyone will legally be permitted to tell them what is wrong with you.
These are the documents Renee calls living documents. They do nothing for your heirs. They do everything for you.
“My Family Already Knows What I Want”
That is the sentence that keeps people from doing this, and it contains two assumptions that do not survive contact with a hospital.
The first is that your family agrees. Standing at a bedside, under pressure, siblings who get along fine at Thanksgiving can take opposite positions on a feeding tube and both believe they are honoring you.
The second is that the hospital will listen to them at all. Federal privacy law decides who gets information about your condition, and goodwill is not on the list. Without the right paperwork, the people who love you can be left in a waiting room while decisions get made around them.
The question worth asking is not whether your family knows your wishes. It is whether anyone has the legal standing to act on them at 3 a.m. in a city you do not live in.
The Three Documents
1. Healthcare power of attorney. This names your agent — the person who makes medical decisions for you when you cannot. Renee’s non-negotiable here is a successor. The person you pick first may be unreachable, or may be the one who falls apart. Name a backup.
2. Advance directive, sometimes called a living will. This is where your decisions go in writing: life support, ventilation, tube feeding. It spares your agent from guessing. One clarification Renee makes often, because people get it backwards: an advance directive governs true end-of-life situations — terminal illness, hospice, a ventilator with no path off it. It does not stop EMS from resuscitating you if you collapse at home. Paramedics are trained and obligated to stabilize you and get you to a facility where someone can make a real decision.
3. Anatomical donation. Most people handle this with a checkbox on a driver’s license, and most people do not know what that checkbox actually authorizes.
If you sign the back of your driver’s license that you want to be an organ donor, you are giving blanket consent for them to use whatever is usable, whatever they deem is appropriately usable, for whatever purpose they deem necessary to whatever recipient or institution they decide… Organ harvesting, organ donation is big business. Let’s just be honest about it. So in your estate planning documents, if you very specifically leave instructions… you get to make those choices.
A supplemental anatomical gift document lets you draw the line where you want it. You can authorize donation for live, life-saving transplant only, and exclude research or teaching use. You can restrict donation to family members. Or you can go the other direction entirely — Renee describes a close friend with a rare cancer who donated her whole body to the Mayo Clinic, where she had been treated. Her family had no body to bury, because that was the point. “That was her contribution back to the world.”
The checkbox gives you one option. The document gives you all of them.
Pick a Different Person Than You Think
The instinct is to name the most capable adult child for everything. Renee pushes back, because financial decisions and medical decisions ask for different temperaments.
We know our children. We know the ones who are going to crumble under pressure. And the ones who are rock solid under pressure, they might fall apart later, but they’ll keep it together to get through the crisis. We might have one who is better at business and financial stuff. We’ll put that one as your financial power of attorney because they’re just making logical decisions, right, transactional decisions. But your health care decision maker, that’s an emotional process. So you always want a backup is my point, but you want to name the person.
Financial power of attorney is transactional. Healthcare power of attorney means standing in a hallway and saying the word out loud. Those are not the same job, and they do not have to go to the same person.
Two Things That Quietly Void Your Document
You can have a signed healthcare power of attorney and still watch it fail. Renee flags two reasons.
HIPAA language. Privacy law prevents a hospital from sharing your chart, diagnosis, or treatment options with anyone not explicitly authorized. If your document names an agent but contains no HIPAA disclosure provision, your agent has authority to decide and no right to the information needed to decide. Make sure the document grants HIPAA release expressly.
Age. A will stays valid for decades. Powers of attorney are treated differently in practice, because hospitals and care facilities are risk-averse and will refuse a document that looks stale.
I’ve seen hospitals reject a power of attorney document because it was dated too many years ago. A hospital in Texas, a daughter had a medical power of attorney. She was trying as the power of attorney to sign mom into the nursing home. The nursing home said that document was dated seven years ago. Our threshold is five. We’re not going to accept it. And where one hospital goes, they all will go… so every three or four years, you should just print them out. Even if the people don’t change, get a new notary, get new witnesses, get you sign it, have new dates on it.
Re-executing an unchanged document every three or four years costs a notary appointment. Having one rejected costs you the ability to act.
What Happens Without Them
Renee uses the Terry Schiavo case to make the stakes concrete. A woman in her twenties entered a persistent vegetative state after a cardiac event with no healthcare power of attorney and no advance directive. Her husband became her decision-maker as next of kin. Her parents disagreed with his decision to withdraw life support.
One judge would say, put in the feeding tube. A year later, a judge would say, take it out… It literally went all the way to the Supreme Court. All because she did not have a power of attorney document… That split families… sibling, cousins, and friends all suffered in that decade-long journey just because a power of attorney document wasn’t put into place.
A decade in court, a family permanently divided, over a document that takes an afternoon.
The second story is smaller and, for parents, harder to shake. A parent’s automatic right to medical information about their child ends on the child’s eighteenth birthday.
Jeremy, at 18, for pocket money… worked for a lawn care company… One day, it’s 3:30 in the afternoon, a drunk driver blows through a stop sign, rolls up on the curb, and runs over him. His parents live three states away… They drove nine hours, by the way, not knowing if he was dead, critically injured, or if he was going to be okay. Once they got there and they proved that they were the next of kin, then, of course, they got all the information they needed. But nine hours in a car, not knowing… is grueling, gut-wrenching, right? If Jeremy, at 18, had named his parents as his power of attorney, then on the drive down, they could have screenshotted that document, proved that they were the right person. HIPAA laws would have been protected and taken care of. They would have had all the information they needed.
Nine hours of not knowing, because an eighteen-year-old had not signed a form that nobody told him he needed.
The Practical List
- If you have an adult child, including one in college, get them a healthcare power of attorney, an advance directive, and a HIPAA release. This is the most overlooked document set in American estate planning.
- Name a healthcare agent and at least one successor, chosen for composure rather than competence with money.
- Confirm your document contains explicit HIPAA authorization.
- Put a recurring reminder every three years to re-sign, re-witness, and re-notarize, even if nothing has changed.
- If organ donation matters to you in either direction, say so in a document instead of on a license.
Doing this is not planning for tragedy. It is making sure that if the worst day arrives, the people who love you are given information and instructions instead of a guess.
This article is for educational purposes only and does not constitute legal or medical advice. Healthcare power of attorney, advance directive, privacy (HIPAA), and anatomical gift requirements vary by state, and document acceptance standards vary by facility. Consult a licensed estate planning attorney in your state before drafting, updating, or executing any healthcare directive.
About the instructor: Renee Parris is an estate planning educator with over 30 years of experience. This article is a companion piece to Renee’s course, Estate Planning, Simplified.
