Durable Power of Attorney for Health

and Advance Directives

Bringing up the subject of Durable Power of Attorney for Health or Advance Directives with your family can be tricky; after all, thinking of a time when you are too ill or injured to speak for yourself is far from pleasant.

While there are those who believe that just mentioning the words "Advance Directives" or "Durable Power of Attorney for Health" can be a jinx that brings ill-fortune upon you, the truth of the matter is, severe illness and injury happen regardless of whether we think about them or not.

Right up there with death and taxes, the other guarantee in this life is that illness and injury can happen at any time. That is why it is so important to be prepared.

Durable Power of Attorney for Health

Advance Directive

HIPAA

Your loved ones will have enough on their plate just dealing with your illness or injury. The last thing they need at such a stressful time is trying to guess what you would have wanted with respect to the healthcare you are provided.

If you live in the United States, you also have to think about HIPAA (Health Insurance Portability and Accountability Act). Although this act was passed with the best of intentions, it greatly impacts who can access your health information.

I prefer to put a positive spin on things by thinking that; if I am prepared for disaster to strike, it will never happen...sort of an opposite to Murphy's law. But, in order for you to discuss Advance Directives, Durable Power of Attorney for Health and HIPAA, you need to have a clear understanding of each item.

Let's have a closer look by beginning with comparing the Advance Directives and Durable Power for Health.

Advance Directive vs. Durable Power of Attorney for Health Care

The Durable Power of Attorney for Healthcare is a legal document which provides authorization for someone you have named to act on your behalf with respect to health care decisions.

It is a separate document from the Durable Power for Finances. You can either appoint the same person to act as your agent (also referred to as a "proxy") or different agents/proxies for each document. We will just focus on the Durable Power of Attorney for Health.

The Durable Power of Attorney for Healthcare is created by a lawyer. Your signature and the signature of a witness must be notarized. The document is very basic in that it simply names your agent and the conditions which must be in place to allow your agent/proxy to act on your behalf.

A judge's ruling or letters from two of your physicians stating you are no longer competent must be in place in order to activate your Durable Power of Attorney for Healthcare.

The problem with the Durable Power of Attorney for Healthcare is that it leaves the burden of making decisions on the shoulders of your proxy. Your proxy must take their best guess with respects to your healthcare choices. They have to guess whether you would want a feeding tube or pacemaker or antibiotics or CPR or... and they have to decide under what circumstances, if any, you would want medical care to be stopped.

If your agent is lucky, you may have discussed some things you wanted and didn't want with respect to your healthcare... and, if you are lucky, your agent was actually listening to you at the time of the discussion and remembers what you wanted!

Let's face it; the first thing to go when you are under stress is your memory. And when you are trying to focus on your loved one after a serious accident, the last thing you want is to have a bunch of healthcare professionals asking you questions such as:

"Do you know if they want to donate organs?"

...or...

"How long do you want to leave them on life support?"

Return to top

In 1969, in response to the increase in medical technology, the idea of a Living Will, a document which provided an individual's advance directions with respect to their healthcare choices, was first conceived. Prior to 1969, patients did not have the right to refuse aggressive medical care.

Laws that followed provided patients the right to refuse care which would otherwise prolong their life and deny them quality to their life.

Within the United States, the Self-Determination Law of 1990 went into place. This law addressed the concern that many individuals were not aware that they could create a Living Will/Advance Directive. The Self-Determination Law required all healthcare institutions to determine if individuals entering into their facilities have an Advance Directive in place.

If you have been admitted to a hospital or out-patient facility since 1990, the admitting staff must ask you if you have an Advance Directive or Living Will in place. If you answer "no" they must ask if you would like information about the advance directives or if you would like an Advance Directives form.

The Advance Directive is considered a legal document however, unlike your Durable Power of Attorney for Healthcare, a lawyer is not required to create an Advance Directive nor are you required to notarize your signature or the signatures of your witnesses.

A growing number of countries around the world including England, Switzerland, Italy, and Germany are instituting laws similar to those within the United States which support an individual's right to make their own healthcare choices.

While many of the documents available today provide you with certain "options" to check off as if it were a multiple choice test, it is better to be as specific as possible with respect to your healthcare choices.

By providing specific directions in advance, you are removing the burden of guessing what you want, or trying to remember what you want, from the shoulders of your healthcare proxy. Creating an Advance Directive is a kind and compassionate thing to do for your loved ones.

If you live within the United States, Caring Connections provides state-specific Advance Directives forms for free!!!

Here is a quick Comparison between the Durable Power of Attorney for Health and the Advance Directive:

Durable Power of Attorney for Healthcare Advance Directive
Must be created by an Attorney Yes No
Allows you to clearly state your healthcare wishes No Yes
Requires Notarized Signatures Yes No
Considered a Legal Document Yes Yes

Return to top

What is HIPAA?

The Health Information Portability and Accountability Act, also known as HIPAA, is an act passed by the United States Congress in 1996. There are two portions to HIPAA. Title I addresses issues associated with healthcare coverage for families when they change or lose their jobs. Title II addresses issues related to fraud and privacy rules.

As you can imagine, both portions of the act are rather lengthy so I will provide you with a very brief summary.

Title I:

  • Employers' group healthcare plans may not exclude pre-existing healthcare conditions for more than 12 months (or 18 months if the person enrolled late).
  • If an individual has had continuous healthcare coverage for 63 days or more and has a pre-existing condition, the employer's health plan must give the individual "credit" against the 12 month pre-existing rule.
  • Protects the rights of individuals who would otherwise lose their coverage as the result of divorce, separation, death or termination.

Title II:

  • Created and defined Protected Health Information (PHI) as any information associated with an individual's healthcare or health status including healthcare claims.
  • Healthcare providers including (but not limited to) physicians, hospital personnel, pharmacists, and insurance carriers must protect the privacy of your PHI.
  • Provides you with access to your medical records, the ability to change your records and ability to state who may access your records (including healthcare claims).
  • Healthcare providers must create a "national provider identifier" (NPI) associated with each individual. In order to prevent fraud and protect privacy, providers may not use an individual's social security number.

This is really a brief summary!!!!

When you hear HIPAA or a new healthcare provider hands you a form to sign related to HIPAA, the focus is primarily on the privacy portion of HIPAA.

For example, a doctor's office is in violation of HIPAA's privacy act if you are able to view the names of other patients when signing in for your appointment. To avoid this violation, your doctor may have a special sign in sheet which allows office personnel to remove the strip of paper with your signature to prevent others from seeing your identity.

Another example which I am sure you are familiar with is the "wait here" line at your pharmacy. You are no longer able to "rush" to the counter if there is someone already at the counter. You must now wait behind the line until the customer ahead of you has completed their transaction.

Now I am sure you can see how protecting your privacy can be a good thing! Unfortunately, it can have its downside as well. Remember when I said that HIPAA restricts who has access to your healthcare information including any claims issues? This particular portion of the law can become rather "inconvenient" when a loved one is trying to find out how you are after being admitted to the hospital.

Legally, the hospital must protect your privacy. How does this translate out to you and your loved ones?

Let's say you want to call the nurse taking care of your mother to get an update on how she is doing after open heart surgery; by law, the hospital cannot give you any information, nada, zip, zilch unless your mother has a HIPAA release of information sheet in her chart.

The HIPAA release of information sheet will allow you or your loved one to state:

  • The name of the person(s) or entity you are granting access to your records
  • What type of information they can receive (it must be stated whether the person or entity listed may have access to your medical records and/or your medical claims information)
  • Over what time period would you like them to have access to your records.

We have provided you with two HIPAA "release of information" forms. You can access these free downloads by either going to our section on "Forms" or go to http://www.healthcare-information-guide.com/HIPAA.html.

Personally, each time I go to a new physician or healthcare provider, I hand them a HIPAA Release Form. Unless you want to endure the frustration of having someone tell you "I am sorry, I am not authorized to give you that information", you will want to make sure you and your loved ones have forms in place with their providers.

Whether it is creating an Advance Directive, having a Durable Power of Attorney for Healthcare or having a HIPAA release of information form on file, do the compassionate thing for your loved ones and be prepared.

And make sure that your loved ones are also prepared! Let them know that, even if they are not physically or mentally able to speak from themselves, these documents can insure their wishes are being respected.

Remember, it is the compassionate thing to do.

Return to top


HOME