LIVING WILL - The Living Will is generally associated with the removal of life support systems, but also extends to the administration of nutrition and hydration. If not diagnosed as being in a persistent vegetative state, one (1) physician must certify that (a) an injury, disease, illness or condition is terminal, (b) the application of artificial life-sustaining procedures would serve only to prolong artificially life, and (c) death is imminent, whether or not artificial life-sustaining procedures are utilized. The current statutory form of living will does not require witnesses or a notary to be present when the document is signed, making it easier to execute the document in emergency situations. The Living Will may also incorporate a Physician Orders for Scope of Treatment form (otherwise known as a “POST”) which more specifically incorporates your wishes through an order entered in conjunction with your doctor. The POST form is meant to be compatible with your Living Will which directs a physician and other health care professionals as to the maker’s wishes in the event they are in a persistent vegetative state or have an incurable injury, disease or illness.
HEALTH CARE POWER OF ATTORNEY - A Living Will must operate in conjunction with a power of attorney for health care. The “Durable Power of Attorney for Health Care” portion of this document includes provisions that incorporate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA protects your rights regarding the use and disclosure of your individually identifiable health information or other medical records. The agent may encounter difficulty in accessing medical records or information without HIPAA compliance. The term “durable” means that the power of attorney continues to operate even though the maker becomes incapacitated. The Durable Power of Attorney for Health Care names an agent, who is a person you designate to make health care related decisions and to carry out the wishes of your Living Will. The agent is generally a family member or close friend. In the Durable Power of Attorney for Health Care, you can authorize alternate agents to act in the event the person named as your primary agent is unavailable or unable to act to make health related decisions for you. The agent can also be authorized to make funeral and burial arrangements for you after death or to carry out directives on these matters.
NEW REGISTRATION PROCESS - Beginning January 1, 2007, the Living Will and Durable Power of Attorney for Health Care could be registered with the Idaho Secretary of State. Commencing on or about October 12, 2021, this registry was transferred to the Idaho Department of Health and Welfare for administration. The new registry requires an email address to be used to establish an account. All existing registries will automatically be transferred to the new registry, but you must create a log-in and password in the new registry to merge the existing registration to your new account. Through the new account it is anticipated that you can share your health care documents with family and healthcare providers. This service is free of charge.
Confirmation of the registration will be sent to the email address used in the registry. There will no longer be a card or password issued to document the registration. Further information on the advance planning documents and registry can be found through the Idaho Department of Health & Welfare website (www.healthandwelfare.idaho.gov).
This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes. Consult with your legal or tax advisors before implementing any suggestion contained herein. Sandra Clapp can be reached at sclapp@clapp-legal.com or (208) 938-2660.