Medicare 101: Medicare and Good Legal Planning

As I’ve noted at various points in these Medicare 101 posts, to get the most from Medicare, careful planning is essential. Furthermore, in order for your health care always to take place according to your wishes, it is also important to think through and plan for the possibility there may be a time when you are unable to communicate your wishes. ​

To prepare for this possibility, I recommend that individuals consider having a living will and a medical power of attorney and that New Jersey residents facing end of life care issues execute a physician’s order for life sustaining treatment (POLST) form.

Living Will
A living will is a legal document which details medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation. In order for your family, physicians and other caregivers to provide the care you want, it’s important to think about your values and to state your wishes for medical treatment and end-of-life care as clearly as you can. Moreover, after you complete and sign a living will, it’s important to have a conversation with your family members about what kind of care you would want in the event you face a terminal medical condition. Regardless of how your care is being paid for, you are allowed to say what sorts of care you do and do not wish to have. I encourage you to exercise your right to do that.

Medical Power of Attorney
A second legal tool is having a medical power of attorney that has a HIPAA authorization in it. A medical power of attorney (also called a healthcare proxy) is a written document which designates an individual to make medical decisions for you when you no longer have the capacity to do so. The medical power of attorney will only go into effect when you do not have the capacity to make decisions for yourself regarding medical treatment. In the document, you designate someone you trust (an agent) to act on your behalf, speaking with health care providers and making health care decisions for you (the principal) when you are not able to make those decisions for yourself.

A medical power of attorney can be included in a living will or it can stand alone as a separate document. It is important that the medical power of attorney include a HIPAA authorization in it because a HIPAA authorization is necessary in order for anyone other than you to receive your personal, private medical information. (Obviously, if you have someone making medical decisions for you, you will want them to have all of your medical information to inform those decisions.)

It’s also important to consider carefully whom you want to designate as your agent. All too often, a medical power of attorney becomes necessary with very short notice – for example, with a sudden change in a person’s medical condition. While you are free to designate whomever you wish as your agent, think about who will be “on the front line” so to speak when you need help. For example, if you live in New Jersey, it may be better to designate your son who lives in Pennsylvania as your agent, rather than your daughter who lives in California, if it will be your son who is close by and can most easily communicate with your health care providers.

Physician’s Order for Life Sustaining Treatment
If you live in New Jersey and are facing end of life care decisions, another document it is good to have is a physician’s order for life sustaining treatment, also called a POLST. This standalone form – printed on acid green paper – contains medical orders which you can carry with you at all times. So, for example, you can have a discussion with your primary care physician (or a specialist, if that’s more relevant) and the two of you can determine that, if such and such were to happen, this is the course of treatment that you want. Then, if that happens and you end up in the hospital, the doctor there will follow the instructions in the POLST – carrying out what you and your physician, who knows you well, have already put together as a plan of action.

This post is for general informational purposes only. The specifics of your situation could affect your eligibility for Medicare and the specific benefits you receive. For a video presentation of this information, please visit Medicare 101: Maximizing Your or Your Loved One’s Health Care in Retirement.

For more detailed information, please visit porzioplanning.com or contact us for a free telephone consultation.

By Deirdre R. Wheatley-Liss, LL.M (Taxation), CELA