Helping You, your Loved Ones, and Your Medical Professionals Manage Your Healthcare Decisions

Medical Powers of Attorney, Living Wills, Advanced Directives, and HIPAA Releases

When the time comes to make difficult decisions about your future healthcare needs, you want to make sure that you have a good support group around you who can carry out your wishes, particularly for those times when illness or injury prevents you from expressing those interests yourself.  The following documents, if well prepared, can ensure that the right people are making the right decisions with you regarding your healthcare needs.

Medical Power of Attorney

  • Appoints an agent to speak and act on your behalf
  • Agent can only act according to direction you give and in your best interest
  • Can be terminated at your request
  • Allows you to choose who can make medical decisions for you if you cannot express your wishes, or on your behalf if it is no longer convenient for you to do so
  • Keeps you in the driver’s seat of your own decisions

Living Will

  • Only way that you can make the decision of how to be treated in the event that you are in a terminal condition
  • Avoids the “Terri Schiavo” battle
  • You specify what life-sustaining procedures you are comfortable receiving and for how long, and whether or not you would like to donate organs or tissues upon your death

HIPAA Release

  • Allows your important medical information to be shared with persons of your choosing so that you can collaborate on healthcare decisions
  • Otherwise, healthcare professionals are legally obligated to keep your loved ones in the dark

Helping You, your Loved Ones, and your Medical Professionals Manage Your Healthcare Decisions

Medical Powers of Attorney, Living Wills, Advanced Directives, and HIPAA Releases

No one likes to think about it, but the moment may come for all of us when it is no longer convenient or even possible to manage our financial or healthcare decisions without the help of a loved one.  There may even come a time when, due to illness, injury, or age, we are no longer able to articulate our wishes to those who care for us.  If we plan ahead, we can ensure that those who care for us can act according to our own wishes.

The following documents are crucial in allowing your wishes to be carried out by those whom you trust, and whom you designate.

Medical Power of Attorney

What is a medical power of attorney and why might you need one?

A medical power of attorney is a legal document in which you, acting as the “principle,” appoint an “agent” to speak and act on your behalf.  It empowers the agent to make decisions for you in case you are unable to act for yourself should you become incapacitated by a debilitating physical disease or mental impairment, permanent or temporary.  That agent is obligated to make decisions based on your preferences and the terms of the power of attorney document.

No power of attorney document authorizes the agent to make decisions over your objection or to act further if you revoke or terminate the power of attorney.

The authority ends with your death, at which point whatever estate planning mechanism you have prepared takes over to govern the disposition of your estate.

Your agent has certain obligations while serving.  The agent has an obligation to keep a record of any and all significant actions taken under the power of attorney so as to be able to answer any questions the principal or other interested person may raise.  Interested persons may include your physician, representatives of your banks or other financial institutions, or family members with an interest in your well-being such as your spouse or adult children.

In general, the agent must act in accordance with your reasonable expectations, as long as those expectations are spelled out in the document or are otherwise reasonably known.  Beyond that, the agent must act in your best interest and in good faith, acting with care, competence, and diligence.

Powers of attorney can be as simple or as detailed as you wish to make them with the help of your attorney.  The basic requirements are that the person you appoint be an adult (defined in Colorado as a person 18 years of age or older).  It is generally wise practice to include in the document an alternate agent and/or a successor agent in the event that your primary named agent is deceased, unwilling to participate, or in some other way unable to make medical decisions for you.

In general, it is best to have only one agent with the ability to speak on your behalf at a time.  Having co-agents (two or more persons who must act together to make medical decisions on your behalf) can create unnecessary conflict and can complicate matters for the medical practitioners giving you care, as both agents would need to agree on a course of action before proceeding.  This can be even more complicated if the agents live in different parts of the country.

Nothing in a power of attorney document takes away your right to make your own decisions.  Having a power of attorney merely allows you to determine who should make decisions on your behalf if you are in some way unavailable or unable to do so.  It still leaves you in the driver’s seat of your own decisions.

How does a medical power of attorney work?

A medical power of attorney empowers an agent, or representative to speak on your behalf in the event that you are not able to do so for yourself.  It is different from a living will because its use is not limited to instances where you are terminally ill or situations where you are facing a potential persistent vegetative state (e.g., you are in a coma, not likely to come out of it, and are being kept alive with medical equipment).

A power of attorney can work to empower the agent to act as a sort of partner with you in your medical decisions, or it can work to empower the agent to act on your behalf only if a certain circumstance occurs, such as your mental or physical incapacity.

If you feel comfortable allowing your agent to act on your behalf (and in your best interests, of course), the language of your power of attorney should specify that the power of attorney is to be effective immediately.

If you prefer that the agent only be authorized to act on your behalf in the event of some occurrence of your choosing, such as your incapacity, the power of authority is said to be “springing.”

Either may be appropriate depending on your preferences and your circumstances, and the document as a whole can contain some authority which is effective immediately and some that is springing.  Your legal advisor can provide you with counsel as to what might be most appropriate for your situation.

A medical power of attorney should be written in such a way that protects the privacy of your medical information.  The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) requires that language to that effect be included in your power of attorney.  For the purposes of the Act, a properly drafted medical power of attorney should include language permitting your agent to be considered a “personal representative” for the purpose of discussing your medical records, conditions and possible courses of medical treatment with medical professionals.  Such language will allow medical professionals to discuss with your agent those details of your medical condition, history, and treatment allowing them to make medical decisions on your behalf with the same information you would have.

An important logistical detail to include in your medical power of attorney is language granting your agent the authority to sign documents that may be crucial to you getting expedient care.  These documents include but are not limited to: admissions applications to medical facilities, assisted living facilities and nursing homes; applications for Medicare, Medicaid, and other medical insurance forms; and the nomination or appointment of a guardian should one become necessary.  An optional element of a medical power of attorney would take the place of a living will by empowering the agent to make end of life decisions.

You should provide a copy of your medical power of attorney to any medical professionals who keep records on you and provide a copy to any hospital, assisted living facility, nursing home, or other medical facility upon admission.  You should keep the original or provide it to your agent.  You should similarly provide a copy of your financial power of attorney to any institutions your agent may interact with, on your behalf, including your bank or any financial institution with which you have accounts, your various insurance companies, etc.

Living Wills

What is a living will?

A living will is nothing more and nothing less than the only way in which you can make the decision of how you are to be treated in the event that you are in a terminal condition.  Absent direct guidance from you in the form of a living will, others will be forced to decide for you, and there is no guarantee that they will agree.  An extreme example of this was the legal battle that lasted from 1998 to 2005 between the parents and husband of Terri Schiavo who was kept alive, in a comotose state, with only a feeding tube for almost fifteen years.

A living will is also known as an Advance Healthcare Directive.  It can apply to when you are deemed to be in a terminal condition, or in other words, when medical professionals have determined that there are no further actions to be taken that can improve your condition, but that your life can be prolonged nearly indefinitely through technology.  You can also use a living will to specify what life-sustaining procedures you are comfortable receiving and whether or not you would like to be an organ or tissue donor upon your death.

How does a living will work?

The most common feature in living wills is for you to express that you desire to be kept on life support for a certain number of days before discontinuing with that process.  Should the need for such a directive arise, it is likely to be a difficult time for loved ones.  Accordingly, you should discuss your feelings on the subject with them ahead of time, perhaps at the time that you prepare your living will, so that all know and understand your feelings on the subject.

As a practical matter, you should also ensure that your loved ones know where to find a copy of your living will, as hospitals are required to inquire if you have one when you are admitted.  Any nursing home or assisted living facility should also have a copy, and you should further provide copies to any physicians you regularly visit to keep with your medical file.  You should keep the original for yourself.

Generally speaking, a properly executed living will is valid in any state where you happen to need it, so you do not need to prepare a new one while planning to spend time elsewhere.  However, some healthcare professionals may be more comfortable with the specific form of their home state’s living will documents.  So, if you plan to move or spend extended time in another state, it could be worthwhile to consult with your attorney to ensure that your living will is up to date.

You should further keep in contact with the attorney that helps you draft your living will so that he or she can help keep your living will current with the laws that govern them.  For example, as questions arise, the state legislatures regularly update the legal definition of “terminal illness,” “life sustaining procedures,” etc., all of which can create ambiguity and thus defeat the purpose of creating a living will—to make your intentions clear when you are no longer able to communicate them.

HIPAA Releases

What is a HIPAA release and how does it work?

It is of utmost importance that your privacy regarding your medical records is kept as safe as is possible.  Accordingly, Congress passed a law entitled the Health Insurance Portability and Accountability Act (“HIPAA”) that limits the use, disclosure, or release of your individually identifiable health information.  This means that medical professionals cannot automatically reveal information to those caring for your or helping you make your own healthcare decisions without prior permission from you.  This is where a HIPAA release becomes important.

Through a HIPAA authorization and release, healthcare providers can readily use, release, and disclose your protected medical information to persons of your choosing.  This will allow you the advantage of being able to discuss with and obtain advice from others.  This will further facilitate decisions regarding your healthcare when you otherwise might not be able to discuss these matters.

You indicate which persons are authorized to have access to your protected medical information and provide that form to the healthcare facility where you are receiving treatment.  Now you have a team of your choosing, all with access to the same information, to help in any decision-making that need occur.