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Phone rings in the middle of the night

Posted by Saidin M. Hernandez | Mar 15, 2023 | 0 Comments

It's never good news. A call at this time usually means that the topic of the conversation can't wait till the morning. As a teenager, I was terrified of the phone ringing in the wee hours as I had the unpleasant experience of being the first to hear that one of my uncles had died followed by my grandmother a few days later. Living with my parents at that time, I was the closest one to the phone.

I've noticed a trend in my practice over the years that it takes those phone calls about a relative or news of someone having a stroke or heart attack for most clients to act and develop an estate plan. However, what I mean by an estate plan is not just the typical will that most clients are familiar with, I mean a comprehensive set of documents including powers of attorney, health care surrogates and a living will. These documents are the most useful estate planning tools during a client's lifetime.

As part of my intake process, I explain to my clients what each of these documents is designed to accomplish. Most people are familiar with the basic power of attorney, but I've found that many clients have never heard of a healthcare surrogate. Once I explain it, the client is usually confused as they had assumed that their family members could accomplish the same tasks without having anything in writing. With the increase in HIPAA privacy enforcement in recent years, hospitals and medical providers are becoming increasingly aware of the risks involved in disclosing protected health information.

A healthcare surrogate is an authorization to disclose protected patient information and an authorization to consent to medical treatment in the event that a patient is unable to do so. Just like a durable power of attorney, the document is valid during the incapacity of the client and can be instrumental in avoiding guardianship proceedings. The document can be customized to address the specific needs of the client such as allowing the execution of DNR orders (Do No Resuscitate), apply for public and veteran's benefits, authorize admission and discharge from healthcare facilities, and even authorize anatomical gifts.

A healthcare surrogate is not going to take away the unpleasantness of the situation, getting that call in the middle of the night, but it helps with providing the right tools to be able step in and help that family member in their moment of need.

About the Author

Saidin M. Hernandez

Principal Attorney


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