Estate Planning, probate and guardianship law are all areas of law where the interaction with physicians and other healthcare experts is crucial. Let’s take a look at each.
Standard estate planning includes documents that instruct healthcare professionals about your wishes. These documents are a directive to physicians, a healthcare power of attorney, and a HIPAA release.
A directive to physicians is your instruction as to what you want done, or not done, if you have a terminal illness or irreversible condition.
A healthcare power of attorney is your appointment of an agent to make medical decisions for you if you are unable to make your own.
A HIPAA release is your authorization for your health care professional to give certain people access to your healthcare information.
Probate is a court action to determine how your estate will be handled after you die. If you left a will, then the Court will need to decide if your will was valid. One legal requirement for a will to be valid is that you had “testamentary capacity,” meaning that you had the mental ability to understand you were making a will, you knew the effect of making a will, you knew the nature and extent of your estate, your next of kin and natural objects of your bounty, and you had sufficient memory to collect in your mind these elements and form a reasonable judgment.
If your testamentary capacity is disputed, then your medical history and the expert opinion of health care experts will be crucial.
Guardianship is a court action that determines if you are incapacitated and require the appointment of a guardian. During this court proceeding, the Court must determine if you are incapacitated. Whether the incapacity in mental or physical, a certificate of medical examination prepared by a physician is required. In contested guardianship cases the testimony of an expert physician will frequently be necessary.
This is just a brief introduction to the interaction between Law and Healthcare. Be sure to discuss your concerns with your legal and medical professionals.
Robert S. Morris is an attorney at Hammerle Finley Law Firm, a boutique law firm offering services in estate planning, probate, guardianship, business law, litigation, and real estate. Contact him at (972) 436-9300. www.hammerle.com. This article does not constitute legal advice.
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