In this episode of Absolute Trust Talk, host Kirsten Howe and associate attorney Ariana Flynn tackle one of the most misunderstood aspects of estate planning: advanced healthcare directives. This is part one of a comprehensive three-part series covering end-of-life and healthcare planning. The attorneys break down the two critical legal documents every adult needs, regardless of age or wealth. They explain why everyone 18 and older must have an Advanced Healthcare Directive, revealing the shocking truth that parents lose all legal authority over their adult children’s medical decisions the moment they turn 18. The discussion also covers California-specific HIPAA requirements that could invalidate your documents if not properly formatted, including the surprising rule about 14-point font requirements. This episode provides essential information that could protect you and your loved ones when it matters most, offering clarity on the difference between legally binding authority and personal wishes in healthcare planning.
Time-stamped Show Notes:
0:00 Introduction
2:47 Understanding the Advanced Healthcare Directive – one of the “big four” estate planning documents.
3:57 Why everyone 18+ needs this document, regardless of wealth.
4:29 Did you know? Healthcare directives are temporary and revocable.
5:29 Listen in as Kirsten and Ariana discuss a critical distinction between legally binding authority and personal wishes.
6:05 Understanding HIPAA releases and federal privacy laws.
7:08 Start listening now to learn about California’s extra requirements that could invalidate your documents.
9:15 Have you done this homework in your estate planning journey?
Transcript:
Hello and welcome to Absolute Trust Talk. I’m Kirsten Howe, the managing attorney at Absolute Trust Council, and I have with me here today one of our associates, Ariana Flynn. You’ve all seen her many times before. Ariana just got back from a weekend in Las Vegas. It was not what you normally think of as a weekend in Las Vegas. Tell us a little bit about what you were doing down there.
Yeah, absolutely, yeah, not your typical Vegas trip. I was there for a basketball tournament. I coach a traveling team sponsored by Nike, and we recently hosted one of our tournaments in Vegas. We’re now heading to Chicago this weekend. I leave later today for my flight to Chicago; this is the final tournament, essentially the end of the season. So yeah, very exciting. And it went well, you won some games this weekend. We did. We did. We won some games, and we also learned from others.
That’s the way you do it, absolutely, either you won or it was a learning opportunity. That’s a positive, positive coaching attitude. Okay, but you all are not here to talk about basketball or even Las Vegas. We’re here today. We’re going to talk about advanced health care and end-of-life planning. And I was inspired to do this episode because in the last, like, maybe two or three weeks, I’ve had a number of conversations very similar with different clients on this topic, and we got into a lot of really deep, you know, kind of heavy stuff. And it reminded me of how often I have these kinds of conversations with clients, and how much misunderstanding, or half understanding there is out there. And my vision is that we’re going to bring it all together in one place, everything. Don’t worry, it’s not going to be one episode. The plan is to cut it into three short episodes, because we know nobody wants to listen for 45 minutes to a couple of attorneys talking. So we’re going to cut it into three logically separated episodes. But my goal is to kind of cover the whole territory on end-of-life planning, health care planning, and we’re going to cover assisted suicide. We’re going to cover euthanasia, all of it. All right, so today, though, we’re just going to cover the legal documents that should be part of every estate plan. As part of what we do as estate planners, we’re just going to talk about those two documents. Arianna, let’s have you talk about the first one.
Yeah, absolutely. As you just mentioned, one of the big four documents of your estate plan is the healthcare directive. We are California-specific. This is a California advanced healthcare directive, and that is a document that does one of several things. Still, its main function is to help you appoint a person to make decisions on your behalf in medical matters if you’re unable to make those decisions yourself. The healthcare directive provides a roadmap of your preferences and decisions on these you know, specific treatments, you know, like pain relief, artificial ventilation, hydration, things like that, and anything else that you may want to kind of add into the healthcare directive too, for example, blood transfusions or some other sort of niche and specific healthcare decisions that you would like or would not Like. The healthcare directive also can touch on, you know, the expression of end of life decisions as well, kind of that myth of, you know, oh, the healthcare directive is just who gets to pull the plug, but it’s really, you know, beyond just that one decision, it encompasses so much, so much more, so much more, right?
And the main takeaway about the healthcare directive, well, there might be a couple, but as you said, the point of it, the legal aspect of it, is that you are naming someone who will make decisions for you. They have legal authority to do that. That is the legal function of that document. In addition, you can throw in your wishes. This is what I would like. This is what I want my health care agent to know. But those are wishes. They’re not legally binding. What’s legally binding is that the person has the authority to make those decisions. And the second thing I would say is that, although this isn’t a result of what you said, it’s something everybody needs, regardless of age. Once you turn 18, your parents are no longer legally your guardians. Like you’re not. You’re not their responsibility anymore, and they don’t really have any legal rights over you or your decision-making. So everybody 18 and over needs one of these. Whether you have a lot of money or no money, you might not need a will, but you do need this. Okay, let’s talk about the other legal document, which is something that we do in our practice. It’s not one of the big four, but yeah, we do it because we think it’s important.
Yeah, and I’m sorry, I’m going to go back to the health care directive. Just one more share of a comment on it, too. It’s not a permanent document, so once somebody starts acting as Agent, you know, if you regain capacity, because it’s a temporary incapacity. You are able to then step in and make those decisions for yourself. I just want to make that clear as well. It’s not you, hand it over permanently, right? No, good point, yeah. And it’s also revocable. You can change it anytime you want to. You’ve picked somebody, and then five years later, you think, now they’re not really a good choice. You can name somebody else. It’s always changing.
Absolutely, the second document ties into the healthcare directive as an ancillary, I would say, and that is the HIPAA. I’m glad I clarified what HIPAA stands for because I can’t memorize it, but it stands for the Health Insurance Portability and Accountability Act, I believe from 1996. Oh, good, yes, that’s a federal law. This means it applies beyond just California. It’s a federal law that keeps medical information private. In simple terms, it means a doctor can’t automatically release your medical information to anyone. You need a written authorization for them to do so. Even if you’re a parent, boyfriend, girlfriend, or child, you still need that written release for the doctors or medical staff to discuss your private medical information openly. That’s a federal law. California has its own law called the Confidentiality of Medical Information Act. You know, California always adds extra rules. The principle is the same—the privacy of your medical information is maintained until you give permission. What California emphasizes is that the HIPAA release must be in a separate document. It can’t be buried inside your healthcare directive. Sometimes, we see it in trusts, but a paragraph with a HIPAA release in California isn’t valid. It has to be a separate document, and it must be in 14-point font, which is larger than the usual 12-point font used in most documents. The default font in Word is 12, so a 14-point font stands out. This requirement is because of California law. Those are the two legal documents we recommend including in everyone’s estate plan: the advanced healthcare directive, which is essential for everyone, and the HIPAA release. Arianna, is there anything else you’d like to add about these two legal documents?
No, I think we covered, covered both of them pretty well, and I just feel that clients do often have personal wishes that they do want to put into their healthcare directive, and that’s a perfect opportunity to do so to help guide their agent. It is a necessary and really important document.
Yeah, part of our homework for our estate planning clients is a worksheet, just so they can sit down and sort of think about what they want to say in their health care directive. And I think just going through that exercise is important. You know, whether you put things into your health care directive in writing or not, just actually thinking through it is a good idea, and even better, talk to your family, have a conversation. Okay, so as I said, we’re going to we’re going to pick this up in a second episode. We’re going to talk about some more documents, not the legal documents. We’re going to be talking now. Next episode about medical documents. So we hope you learned something today, and we will connect with you next time.
Resources Related to This Episode:
- Absolute Trust Talk Episode 125: Cher Files for Conservatorship of Son Elija Blue Allman https://absolutetrustcounsel.com/125-cher-files-for-conservatorship-of-son-elijah-blue-allman-over-alleged-substance-abuse/
- Absolute Trust Talk Episode 124: Beach Boys Founder Brian Wilson Suffering from Dementia as Rep Seeks Conservatorship https://absolutetrustcounsel.com/124-beach-boys-founder-brian-wilson-suffering-from-dementia-as-reps-seek-conservatorship/
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- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your unique needs to build a secure future now effortlessly. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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