Your Rights When a Hospital Agent Insists that You Use their Advance Medical Directive

My estate planning team gets asked this question quite often – what can be done if a hospital agent or administrator says that you have to use their Advance Medical Directive.

Here’s the answer:

Politely tell them that you have a legal right under state and federal law to create your own Medical Directive. As long as the directive complies with state law, it should be honored. State laws can include formalities like having notary, two witnesses, being of sound mind when completed, etc. Some states even include laws which say if a healthcare facility refuses to follow your directive, they must transfer you to a facility that does. If a facility does refuse a Directive in compliance with state law, you should contact an attorney.

Why is it important for you to use your own Advance Medical Directive? Because it empowers someone of your choice, like a trusted friend or family member, to make medical treatment decisions if you are unable to communicate your wishes to doctors. Without this directive, you must have a guardian or conservator appointed by a court before medical decisions can be made on your behalf. Additionally, your own Medial Directive may include more in depth choices and directions than a standard hospital form would. Also, creating a Directive ahead of time when you are of sound mind can often times be better then when you are under stress and forced to make a quick decision.

Advance Medical Directives save precious decision-making time and ensure that someone you know and trust has the power to make extremely important decisions for you if you are incapacitated.

Also, if you have an outdated Medical Directive, it is possible there is no language addressing HIPAA (Health Insurance Portability and Accountability Act of 1996). Since HIPAA was enacted, without written authorization from you, the patient, a health care provider is legally restricted from disclosing medical information to anyone other than you, or the person appointed under state law to make health care decisions for you.

HIPAA regulations allow for an authorization of release of this information to persons other than you or your personal representative. This is why a HIPAA Release should be included in your Advance Medical Directive.

The estate planners at InSightLaw take the time to sit down with clients and counsel them on healthcare issues. We do not want that carefully-crafted work to be superseded by a misunderstanding of process and statute at the hospital admissions desk. Finally, we always recommend to our clients to have that tough discussion with their healthcare agents to ensure the agents know their wishes, and know where to get the legal documents they need to carry them out. Your agent knowing your wishes and being a good patient advocate will go a lot further than anything just written down.