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Posted by Anonymous

Having major surgery is scary for many people. There is a fear of pain and fear of an unknown outcome. Many patients feel that their fate is out of their control. However, there is a lot that patients can do to stay in control of their own lives and plan for their own legal futures.

Specifically, patients can direct doctors on how to act even if they are unable to speak by creating durable powers of attorney, health care proxies, advanced health care directives and do not resuscitate (DNR) orders. Without these documents your family may be under a tremendous amount of pressure to try to decide what you would want done given the situation. Worse, your parents, siblings, spouse and children may disagree about what should be done and they may begin fighting with each other.

In addition to planning for your future medical care, you can also plan for the time after surgery by knowing your rights to extended time off from work for your recovery and what your health insurance plan will allow for rehabilitative or home care. Many patients also find peace of mind in planning for the worst case scenario: death. Patients who have made a legally binding organ donation decision and who have life insurance, a Last Will and Testament and a guardian named for their kids can take comfort in knowing that their posthumous wishes will be honored.

Therefore, before going into surgery, patients should:

  • Create and Execute an Advanced Health Care Directive: an advanced health care directive or living will allows you to inform medical personnel about your medical care decisions if you are unable to do so verbally. These documents are looked to first if you are unconscious or unable to communicate and they are followed if they provide clear guidance as to your wishes. In the absence of these documents, your physician will look to your health care proxy or next of kin to make the necessary medical decisions on your behalf. If you are married then your next of kin is likely your spouse and if you are single then your next of kin is likely your parent. There are many reasons why relying on your next of kin can be problematic. The individual may not be aware of your medical wishes and may make a decision that you would not have authorized. Or, the individual may make a decision that is troubling for other family members and in so doing create a rift in the family. These problems can be avoided with an advanced health care directive that is properly executed according to the laws of your state. Typically, the document must be in writing, signed and witnessed in order to be enforceable. It may also need to be notarized.

  • Create and Execute a Durable Power of Attorney or Healthcare Proxy: A durable power of attorney or healthcare proxy allows you to name a person who can make health care decisions for you in the event that you are unable to do so yourself. For example, medical decisions may need to be made while you are in surgery or while you are recovering and have not yet regained consciousness. A durable power of attorney or healthcare proxy, who presumably knows you well, can make the decisions for you. Healthcare proxies should be designated in writing, signed and witnessed according to the procedures set forth in state law. If you do not appoint a healthcare proxy then medical personnel typically consult your closest family member who is charged with making difficult decisions that can be problematic, as discussed in relation to advanced health care directives.

  • Create and Execute a DNR: If you do not want heroic measures taken to save your life then you should execute a Do Not Resuscitate Order. Typically, a DNR is used if you have suffered either cardiac or respiratory arrest and resuscitating you would only extend your life for a short amount of time. In the absence of a DNR, medical professionals must take steps to extend your life even if that will result in a painful and short existence for you.

  • Know Their Post-Surgery Rights to Medical Leave: the federal Family and Medical Leave Act (FMLA) may allow you to take up to 12 weeks of unpaid leave while maintaining your health benefits. FMLA applies to public employers and to employers who have 50 or more employees for at least 20 workweeks a year. An employee is eligible if he or she has worked for the employer for at least 1,250 hours over a 12 month period. State laws and company policies may provide you with additional rights. You may also be required to use up any personal, vacation and sick time that you have accumulated as part of your FMLA leave.

  • Understand their Insurance Coverage: surgery is expensive. It is important to understand your health insurance coverage and estimate your out of pocket expenses so that you are not hit with a financial surprise. Doctors and hospitals that accept your insurance may collect copayments from you and money that counts toward your insurance deductible but they may not charge you any additional fees. If your medical professionals are charging you more than the approved insurance amount then you should contact your insurance company and if your insurance company is not providing the coverage agreed to in your contract then you should contact your state department of insurance to file a formal complaint.

  • Make Arrangements for Organ Donation, if desired: if you want to become an organ donor then you need to affirmatively make that designation according to the procedures set forth in state law. Many states allow people to become organ donors by designating organ donor status on their driver's licenses. Other states may allow you to make the organ donor designation in another legally binding document. However, it is important to remember that organs must be donated as quickly as possible after you death. Since your driver's license is usually readily accessible it is a good way to make your desire to donate your organs known. If it is in your will or some other document that is not readily available then it might be too late for medical professionals to use your organs to benefit transplant recipients. If you do not affirmatively and legally state your desire to become an organ donor then you will be presumed not to be an organ donor.

  • Review Life Insurance Coverage and Beneficiaries: It is important to determine the extent of your life insurance coverage and who will collect on your life insurance if you should die during or after surgery. If you wish to change your beneficiaries then you should contact your life insurance company for a change in beneficiary form. Some states require you to have the signed written consent of your spouse if you make anyone other than your spouse your life insurance beneficiary. If you are naming your minor children as the beneficiaries then it may be beneficial to create a trust for the life insurance proceeds so that a trustee can manage the assets for your children until they become adults.

  • Name a Guardian for Minor Children: It is important that you name a guardian for your children in your Last Will and Testament or in another legally binding document so that the person whom you choose will raise your children in the event that you are unable to do so yourself. Your will, or separate guardian document, will need to be executed according to the requirements set forth in state law. Most states require that you sign the document and have it witnessed. If you do not make this designation then a court of law will make it for you and it may not be the person whom you would have chosen to raise your kids. There may also be a lot of fighting among your family members about who will raise the children. You can avoid adding this tension to what will already be a traumatic time for your kids by legally naming a guardian for them.

  • Create a Last Will and Testament: A will is an important document. It ensures that whatever assets and possessions that you own will be distributed according to your wishes and more importantly it ensures that your children will be provided for after your death. You, instead of the state, will be able to make these important decisions. In order to take advantage of this opportunity, you must create a written document that is made of your own free will and without coercion or duress. You must be of sound mind and you must sign the document in front of impartial witnesses. Many people chose to have their attorneys retain their will or to put it in a safety deposit box so that it can easily be found upon their death.


Most people come through major surgeries just fine. However, that does little to lessen the anxiety that precedes a major surgery. The documents described above can help you plan for any contingency and give you peace of mind prior to your surgery.


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