Your Medical Directive – Emphasizing the Patient Advocate

What’s the most important feature in an Advance Medical Directive?

Most people think it is the written guidance they provide to their loved ones when facing end-of-life issues. After all, in most medical directives, this guidance is the very first thing that appears in the document.

I believe such an emphasis is misplaced. For most people, the most important feature of a medical directive is that it empowers the person you choose as your patient advocate.

Keep in mind that a person’s medical directive is most relevant and useful when the person is in a hospital or similar institutional setting. The typical person in this setting does not have a terminal condition and therefore has no need to express end-of-life wishes. But very often, a person in this setting is unable to advocate for himself or herself in the event he or she is being ignored or mistreated.

That is why it is critical to have a medical directive that appoints a trusted person who can be your patient advocate and gives that person the authority needed to serve you in that capacity, including the right to access your medical information. Health care providers are legitimately concerned about breaches of medical privacy. Under the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, they could face significant penalties for unauthorized releases of medical information. Understandably, they are reluctant to release private medical information to a third party without having first an explicit HIPAA authorization.

In my firm’s medical directive template, I emphasize granting the health care agent or patient advocate the powers he or she will need to protect the patient who is being ignored or medically mistreated. I think it is important to specifically reference HIPAA, which most pre-printed hospital-supplied medical directives do not do mention by name.

I do not ignore end-of-life instructions in my medical directive template, but I do not exalt them over the patient advocate provisions. Most clients select from one these two templates for expressing their end-of-life wishes, and tweak the language accordingly:

Option 1: If at any time my attending physician should determine that I have a terminal condition where the application of life-prolonging procedures – including artificial respiration, cardiopulmonary resuscitation, artificially administered hydration, and artificially administered nutrition – would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain. I understand that applicable law interprets “life-prolonging procedures” to include artificially administered hydration and nutrition.

Option 2: In exercising the power to make health care decisions on my behalf, my agent shall follow my desires and preferences as stated in this document or as otherwise known to my agent. My agent shall be guided by my medical diagnosis and prognosis and any information provided by my physicians as to the intrusiveness, pain, risks, and side effects associated with treatment or nontreatment. My agent shall not make any decision regarding my health care which he knows, or upon reasonable inquiry ought to know, is contrary to my religious beliefs or my basic values, whether expressed orally or in writing. If my agent cannot determine what health care choice I would have made on my own behalf, then my agent shall make a choice for me based upon what he believes to be in my best interests.

For those clients who wish to provide highly detailed guidance, I recommend they complete Five Wishes, a popular document that helps you express how you would want to be treated – physically, emotionally, and spiritually – if you were seriously ill and unable to speak for yourself. The Five Wishes document is a nice supplement to a medical directive that emphasizes the appointment of a patient advocate.

How to Title Your Investment Accounts

If you are married, and you own a home, I am willing to bet that title to your home is in your joint names as “tenants by the entirety.” But if you are married and you have a brokerage account or other investment account, I am almost equally sure that you own that account as “joint tenants with rights of survivorship.”

Is one form of title preferable to another? Absolutely. If you and your spouse are going to own a financial account in your joint names, “tenants by the entirety” is almost always the way to go. It has to do with asset protection.

Imagine you are sued. It’s not that farfetched. You might be sued because you are negligent in driving your car and you cause damage to someone else. You might be sued because you break a contract and cause harm to the other party. You might be sued because you are a professional – such as a doctor, lawyer, or architect – who makes a mistake and causes injury to a patient or client or customer.

Now, imagine you go through a court trial and you are the losing party. The court then enters a monetary judgment against you. If you do not have insurance, or enough insurance, to cover the amount of the judgment, it is likely that your creditor will seek to collect the remainder of the amount owed by going after assets that you own personally.

The first asset the creditor might try to levy upon will be your residence. If the home is owned by “Tom and Jane, as tenants by the entirety,” and the judgment is against Tom only, your home is judgment-proof. Under Virginia law, and the law of most states, an asset held by a married couple as tenants by the entirety is not viewed as being owned one-half by Tom and one-half by Jane. Rather, it is owned by the mystical union of Tom and Jane as a married couple and one member of that union cannot unilaterally cut the asset into two separate pieces.

And if Tom can’t do that unilaterally, neither can one of Tom’s creditors. If Jane is not a party to the lawsuit, the asset is protected from Tom’s creditors.

But suppose your investment account is jointly held by “Tom and Jane, as joint tenants with rights of survivorship.” Those assets are not judgment proof. Tom’s creditors could, through the courts, separate the assets into two equal shares and then take Tom’s one-half to apply towards the monetary judgment against him.

Why don’t financial institutions routinely title the assets of married couples as tenants by the entirety? Historically, it was unclear whether the law allowed married couples to own financial assets as tenants by the entirety, or whether that privilege was limited to real estate. Va. Code § 55-20.2 was enacted to remove any doubt about Virginia law. Other states have similar statutes.

If you never get sued, consider this a theoretical discussion. But you cannot safely change titling the day after you learn you are being sued. That could be considered a fraud on your creditors. So my advice to most married clients is: if you are going to hold financial accounts in your joint names, be sure to include the phrase “tenants by the entirety” after your names. And if your financial institution tells you they do not offer this as a titling option, find a new financial institution.