Last week, I wrote a blog post about estate planning, which included my estate planning recommendations as we face the COVID-19 health crisis. This week, I’m writing specifically about the Durable Power of Attorney-Healthcare document (also known as a Medical Power of Attorney or Patient Advocate Designation). While I think a Durable Power of Attorney-Healthcare (DPOA-HC) is an important part of an estate plan under normal circumstances, it is even more important – I would argue essential – at this time.
Durable Power of Attorney-Healthcare – the Basics
A DPOA-HC is a legal document that allows you to accomplish three main objectives:
1) To appoint a Patient Advocate who can make your medical decisions for you if you are unable to do so. If you become incapacitated due to illness or injury, another person (a patient advocate) can make your medical decisions for you only if that person is appointed through a DPOA-HC.
It is important to note that spouses do not have automatic power of attorney rights for each other. My clients are generally shocked when I tell them this, but legally speaking, a spouse must be appointed through a DPOA-HC to make medical decisions for his/her spouse.
2) To allow your Patient Advocate access to your medical information. Due to the Health Insurance Portability and Accountability Act (HIPAA), if you are incapacitated and unable to give consent, your medical provider is legally not allowed to provide any of your medical information to another person, unless that person is approved through a DPOA-HC. As stated in paragraph 1 above, this applies to a spouse, as well.
A valid DPOA-HC, prepared by a knowledgeable estate planning attorney, will include a HIPAA provision granting your patient advocate access to your medical information.
If your DPOA-HC was created prior to 1996, when HIPAA was enacted, or if an error was made and your DPOA-HC does not include a HIPAA provision, you should create a new DPOA-HC.
3) To make decisions about end of life treatment. If you want to decide now how much treatment you would want, or whether treatment could be stopped, if you were in an irreversible coma or vegetative state, you must make that choice through a DPOA-HC.
If you do not have a DPOA-HC, your medical provider will not allow your spouse or other loved ones to make the decision for you to stop medical treatment if you are in an irreversible come or vegetative state.
If you already have a DPOA-HC, what you should do now?
1) Review it. If you have a DPOA-HC in place, now is a good time to review your document to make sure it is legally valid and current to your needs and wishes. As mentioned above, your DPOA-HC should have a HIPAA designation that specifically grants your patient advocate access to your medical information. Your DPOA-HC should also include your end of life treatment decisions.
In addition to the legal necessities outlined above, make sure your appointed patient advocate, as well as any backups, are still appropriate and able and willing to make your medical decisions for you if you are unable to do so.
If you need to change any portion of your DPOA-HC, I recommend that you create an entirely new document instead of making handwritten changes. Whereas handwritten changes to a Last Will and Testament are common and considered routine, your medical provider will most likely view handwritten changes to your DPOA-HC with skepticism. Your DPOA-HC may not be honored if handwritten changes have been made to it.
2) Talk to your appointed Patient Advocate. You should notify the person that you have appointed as your patient advocate, as well as any backups you named. First, you want to make sure your appointed patient advocate is willing and able to make your medical decisions if necessary. Second, your patient advocate needs advance notice of your choices so s/he understands your wishes and knows to act if you become unable to make your own medical decisions.
3) Make sure your DPOA-HC document is accessible. If you are sick and go to the hospital, take your DPOA-HC with you. This will ensure that your patient advocate can make medical decisions for you if you become unable to do so.
In case you forget to take your DPOA-HC with you, I recommend that you keep a copy of your DPOA-HC in your email inbox, so it is accessible through your smart phone or tablet. Copies of this document are valid. If you are hospitalized, and you have the document on your phone, you can provide a digital copy to your medical provider.
I also recommend that you provide a copy to your patient advocate, and if that is not possible, at least tell your patient advocate where your document is located.
And if possible, provide a copy of your signed DPOA-HC to your primary care physician (PCP). Although you may not want to visit your PCP in person at this time, you may be able to email a copy that could be placed in your medical file. Once in your medical file, if you are hospitalized, your DPOA-HC should be readily available, regardless of whether your patient advocate has a copy.
With the shutdown in place, can I create a DPOA-HC if I don’t have one?
Yes. My office remains open during the shutdown. Although I am currently working from home, I am making accommodations for clients that have an urgent need to create an essential legal document.
I believe very strongly that a DPOA-HC is essential during this health crisis. If you need to create a DPOA-HC, my office will draft the document and we will meet as necessary to make sure your document can be signed and witnessed.