Careful when signing health care directives at the hospital

VIDEO TRANSCRIPT:

Hello everyone this is Robert Mansour, and I wanted to make a brief video about an issue that sometimes raises its head in the field of estate planning.  One of the tools that I help clients with is something called an advance health care directive. An advance health care directive is part of the estate planning legal tool box as I call it. A health care directive is where you name someone called your "agent," to be your health care advocate. They're not only the person who decides "pull the plug" and all the cliches that go with that, it's more. This person is going to be my legal advocate. This is the person who's going to make sure that I'm taken care of properly. This is the person who has the legal authority to talk to health care professionals, to make decisions on my behalf etc.  It is a very important tool.

When you walk into some hospitals and some settings like that, sometimes what they do is they give you a form to fill out right when you walk in and they'll say, "Do you have a health care directive with you?" And you'll say, “No I don't," and they'll say, "Well here - sign this." They give you their own health care directive. Why is the hospital giving you their own health care directive? Did you ever think about that? Is it to protect you or perhaps to protect the hospital?

Of course there is some good measure to have one especially if you don't have one at all.  You might want to fill out the one that the hospital gives you at the very least, but generally speaking that hospital form that they give you is not effective immediately. It is effective only upon the declaration of your incapacity by a physician or perhaps two physicians or I've seen even three physicians.

You've named this person in this document, but they can't really help you because you haven't yet been declared incompetent or incapacitated by a physician so they can't really be your advocate. They don't have any legal authority to do anything until that happens. Now you might be saying, "Why would I want them to help me?" There's many times when you need a health care advocate and you have capacity, you're fine, but you need somebody else to have that power to act on your behalf. That's one limitation of some of the forms that I see hospitals have people sign.

Another limitation is the following: Generally speaking the form provided to you by the health care facility does not allow access to the health care records. Why wouldn't the health care facility want you to have access to the health care records? Well it's very plain and simple. They don't want your family looking at those health care records, they don't want your agent to have access to those health care records because they don't want anybody questioning or reviewing anything that they did at the hospital or at the health care facility.

Generally speaking you want to make sure that the health care directive you have not only authorizes that person to act on your behalf, but also allows them access to the medical records. The form that you sign at the hospital invariably will not allow that to happen.  Be very careful about the forms that you sign when you're in that kind of context. If you have a health care directive already that allows for those things you might say, "Oh no thank you very much, I already have a health care directive." Then make sure your agent brings it to the hospital. Thank you very much for watching this video. I hope you found it helpful.

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