Disclaimer: The information below is not professional legal advice. I am not a law practicing attorney, nor am I your law practicing attorney. The following post is for informational purposes only. Seek the advice of a legal professional for all legal matters.
“What’s happening?” I asked worriedly as a uniformed woman and man wheeled a gurney into the ER examination room.
I had just rushed into the room where my mother was being evaluated at the local emergency center. As my mom was strapped onto the gurney, my dad was presented with a flurry of paperwork to sign on behalf of my mother. Fortunately, mom had already identified dad as her power of attorney and he was able to handle everything as she prepared to be transported to the hospital.
Who speaks for your loved one when they cannot?
If a loved one doesn’t have an advocate or support system, they may not get the care and treatment the need and deserve.
Supporting and advocating for our loved ones is tough at the best of times. But an emergency situation? It’s scary!
Having legal documentation to advocate for a loved one clears the path for timely, necessary, and urgent care and treatment. It also allows you to take care of practical matters such as bills and insurance claims if they are unable to do so.
What legal documents does your loved one need? Read below to learn what documents you should have available to make sure your loved one’s needs are met.
Basic Legal Documents for Patient Advocates
What happens if your loved one becomes incapacitated or is unable to speak for themselves?
Having the legal authority to speak for them and grant their wishes is essential.
If your loved one does not have the following legal documents or the documents need updated, the best time to do it is NOW. Have the documents written up by a legal professional BEFORE you need them.
These are standard documents that an attorney can create quickly. Have a conversation with your loved one about legal responsibilities and the necessity of having an advocate (you) listed on the paperwork. Help your loved one make an appointment with their attorney and get it done. You will sleep easier at night knowing everything is covered from a legal standpoint.
I keep copies of these documents for my loved ones with me at all times – just in case.
Document 1: Durable Power of Attorney
A durable power of attorney includes designating power for a particular individual to make decisions on your loved one’s behalf. This could mean financial decisions, buying and selling of property, or may be limited to transferring a vehicle title.
A durable power of attorney remains in place even if your loved one becomes incapacitated.
Document 2: Durable Health Care Power of Attorney
A health care power of attorney specifically addresses health care as being covered in the designated powers given to an agent or proxy. It includes making decisions for general health care as well as end-of-life care.
A Durable Power of Attorney for Health Care is “a document that lets you name someone else to make decisions about your health care in case you are not able to make those decisions yourself. It gives that person (called your agent) instructions about the kinds of medical treatment you want.” (Lawhelp.org)
A patient advocate may or may not be listed on a Durable Power of Attorney for Health Care. If you are the patient advocate for a friend or family member, check to see if your name is on their Durable Power of Attorney for Health Care. If not, have a conversation with that person and see if adding your name to their Durable Power of Attorney for Health Care would be beneficial. This is a simple update that may be done at any time and most attorneys will do it for free or at a nominal fee.
Additionally, healthcare provider’s have some discretion as to whom they can personally speak with regarding a patient’s health care. View the finer points from the U.S. Department of Health & Human Services here.
A durable health care power of attorney remains in place, even when the person for whom is it for becomes incapacitated.
Document 3: Living Will
A living will is a written, legal document that specifies what medical treatments an individual would and would not want to be used to keep you alive. A living will also lists preferences for other medical decisions including pain management and organ donation. (Mayo Clinic)
Like a Durable Power of Attorney for Health Care, a Living Will is written, legal instructions for specified individuals regarding a patient’s medical care should that patient be unable to make their own decisions. For example, if a patient is in a coma and unable to speak for themselves, a Living Will provides guidance to those making medical decisions on their behalf. A Living Will states a patient’s views on receiving end-of-life decisions such as mechanical ventilation, tube feeding, and palliative (comfort) care.
If the patient advocate is listed on the Durable Power of Attorney for Health Care, a Living Will can help guide decisions for the patient based on their own wishes.
Like a Durable Power of Attorney for Health Care, a Living Will can and be updated at any time. Living wills should be reviewed periodically and changed if necessary. For example, a Living Will that was written when a patient was in their thirties, may not be accurate decades later following a cancer diagnosis.
Patient advocates should have a conversation with the patient about a Living Will to develop a deep understanding of the patient’s wishes.
A living will is valid ONLY if your loved one is unable to communicate your preferences.
Document 4: Advance Health Care Directive
A durable health care power of attorney combined with a living will creates a combined advance directive for health care. If a durable health care power of attorney and a living will already exist, a separate Advance Health Care Directive document is not necessary.
Document 5: DNR / DNI
DNR stands for ‘do not resuscitate’. DNI stands for ‘do not intubate’. Patients do not need to have a living will or other advance directive to have DNR or DNI orders. A physician can add your wishes regarding DNR/DNI to a medical record at any time
If the patient does not have a Living Will to express their DNR/DNI wishes, it is a good idea for the patient to share this information during every hospital admittance or stay in a health care facility.
Basic Legal Documents Patient Advocates May Be Asked to Sign
Who is in charge of paperwork if your loved one is incapacitated? You are!
Below is a list of documents you may be asked to sign if your loved one is being treated or cared for at a health care facility and is unable to do so themselves.
Background Information on HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) was passed in the United States Congress on August 21, 1996 (NCBI). The act had two objectives: 1. To ensure that individuals would be able to maintain their health insurance between jobs. 2. To ensure the security and confidentiality of patient information (University of Chicago).
Patient information includes everything from patient names and addresses to medical diagnoses and finger prints. See a list of protected patient information here:
HIPAA’s confidentiality rules are applicable to patient advocates. These rules ensure that a patient’s personal health information is protected. A patient advocate must be trustworthy and discreet. Patient advocates do not share patient information to anyone without express permission from the patient.
Written permission allowing the patient advocate to receive patient information is required by law for healthcare providers. Durable power of attorney and durable health care power of attorney documents typically meet this requirement.
HIPAA is serious business that may incur expensive fines and potential jail time for infractions. Make sure you’re on the right side of the law and have legal permission to sign the following forms.
Document 6: Notice of Privacy Practices
Every healthcare facility is required by HIPAA to share a Notice of Privacy Practices to patients. Patients are often asked to sign and date the Notice of Privacy Practices to prove that it was given to the patient.
Document 7: Patient Consent for Use and Disclosure of Protected Health Information
Patients must give permission for a healthcare facility or professional to use and disclose protected health information. This permission allows the facility or provider to use and disclose patient protected health information to carry out treatment, payment, and health care operations. Consent may be revoked at any time.
Some health caregivers combine the Notice of Privacy Practices and Patient Consent for Use and Disclosure of Protected Health Information on the same form by notifying the patient that a Notice of Privacy Practices exists and that it is their right to request a copy of the Notice of Privacy Practices, even if it is not included on the form. In this case, the healthcare provider will only provide the Notice of Privacy Practices when asked for it by the patient. Signing a combined Patient Consent for Use and Disclosure of Protected Health Information form merely states that the Notice of Privacy Practices has been offered to the patient, not shown directly to the patient.
Document 8: Medical Record Release (Authorization to Disclose)
An Authorization to Disclose Protected Health Information is different from Patient Consent for Use and Disclosure of Protected Health Information. Authorization to Disclose Protected Health Information refers to medical records. For example, if a patient decides to leave the care of one medical practice to go to another, it is in the patient’s best interest to have their medical history in the form of their medical records be sent to the new medical practice. The movement of medical records requires its own permission form and is typically called the Authorization to Disclose Protected Health Information.
Signing the Authorization to Disclose Protected Health Information gives the current provider permission to send a patient’s protected health information to a different provider. Note that some healthcare providers will charge a fee for the reproduction/transmission of medical records. It is the patient’s responsibility to ask if there is a fee. This fee may not be covered by medical insurance.
Conclusion
An unexpected illness. A fall. A caregiver suddenly departs.
Now you know what basic legal documents are commonly used and needed to provide the best care and treatment for your loved one.
Life can change in an instant. Be prepared to support and advocate for your loved one by getting their legal foundation firmly in place one document at a time.
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