Elder Law

Durable Power of Attorney for Health Care

It's an unavoidable fact that we get older and often fall into poor health. For older people, health care decisions become almost a daily occurrence.

What would happen if a loved one like your mother or father were unable to make health care decisions? Who would make the decisions for them? Debilitating injuries or illnesses such as strokes, Alzheimer's or dementia could make that person you.

Creating a health care proxy, or durable power of attorney (POA) for health care, health care POA or advance directive, puts less stress on you later on. However, be sure it follows state laws and rules for it to be valid. Know what should in it and what requirements should be met.

What a Health Care Proxy Does

Generally a health care proxy is a legal document that contains the name of the person who's authorized to make health care and medical decisions on behalf of another person. This person is called an agent, attorney in fact, surrogate, or personal representative.

The document usually states in what occasion it becomes effective. The occasion can be a specific event such as being in a coma, or it can be a general event, in which you have the inability to make decisions and a doctor feels it is irreversible.

Making a Valid Proxy

As with all legal papers, certain clauses must be present and actions must occur for a health care proxy to be valid and enforceable.

First, it must be "executed." This means that you must sign the proxy before becoming incapacitated. At the time that the signature is made, you must be mentally competent and understand what's being signed.

Second, you have to name or appoint an agent, a person who will carry out your wishes if you are incapacitated. You can name more than one agent, and each may have different responsibilities.

Third, the proxy should clearly state a triggering event - what action will happen for the proxy to become effective. Usually, proxies are written so they become effective when you're "incapacitated."

Also included are specific instructions about the use of various medical and life-saving procedures that should or should not be used when you can't make your own decisions.

State law often restrict the types of decisions that an agent can make under a proxy, so be certain to check the laws in your area before signing a health care proxy, or seek the advice of an elder law attorney.

Proxies & HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects every patient's health care privacy and restricts a health care provider's disclosure of protected information.

Generally, the person named as the agent in your health care proxy has the right to see most of your health care information: the agent (or "personal representative" in HIPAA) has access only to "relevant information," not the whole medical history.

HIPAA issues should be addressed in the proxy. To address HIPAA:

  • Ensure that the proxy states the agent is also the personal representative for health care disclosures under HIPAA
  • Make sure the agent is given the same access to relevant protected health information as you are

In addition, it's a good idea to have a "HIPAA waiver" or "HIPAA release," which states specifically:

  • What medical information can be disclosed, that is, any information protected by HIPAA
  • Who can make the disclosure, like a doctor, and to whom the disclosure can be made, such as an agent or personal representative
  • Why the information should be disclosed
  • That you one has the right to revoke the waiver or release, and
  • Any disclosure of HIPAA information is not in violation of the Act in this situation

Where to Keep the Proxy

Keep the original proxy in a safe place, like a safe deposit box or fire-proof safe at home, along with other important papers.

A copy of the health care proxy must also be kept on file at a nursing home or other long term care facility if you or a loved one is a resident.

Questions for Your Attorney

  • I'm 45 years old. Should I have a health care proxy?
  • My dad made a health care proxy 40 years ago. Is it still valid?
  • My mom created a health care proxy a few years ago. She recently had a stroke and her doctor has her on life-support. I can't find the proxy, What can I do?
  • Is a health care proxy the same as a Living Will?
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