A
Simple Explanation of Powers of Attorney, Medical Powers of Attorney, HIPAA
Authorizations, Advance Directives, Directives for Mental Healthcare and Do Not
Resuscitate Forms
I have spent a lot of time
in and around health care facilities in the last few years. I have been an
Elder Law Attorney in the Austin area for over 20 years. It has recently come
to my attention that most health care professionals do not really understand
all of the legal documents related to health care, what they do, what they
don’t do, and what to look for in each document that could create issues. I
have created this presentation to give you a reasonably simple explanation of
each of the documents.
I.
Statutory
Durable Power of Attorney.
This
document grants to an “agent” the authority to manage your financial affairs.
While it can be limited to certain financial matters, this form is usually a
broad grant of financial powers to the agent intended to be used when the
person giving the powers (“Principal) becomes incompetent or incapacitated to
the point they can no longer manage their financial affairs. THIS DOCUMENT
DOES NOT GRANT ANY POWER RELATED TO MEDICAL DECISIONS OR TREATMENT! It
does not grant the power to determine where the Principal lives, what treatment
they receive, what type of facility they may be admitted to, or any other
health care related matter.
Some
of the issues that you should be aware of in reviewing this document:
a. Some
people name Co-Agents for their financial power of attorney. This is generally
done to enable two family members to share the burden of managing the
Principal’s financial affairs. However, if there are Co-Agents named, make
certain that you determine if they have the power to act independently or
whether they must work together. The form should clearly indicate this. If it
does not, then the agents must work together. That means that you must get
both of them to sign documents related to financial matters, both of them must
authorize payments, or make any other financial decision.
b. The
power of attorney can have a specific threshold event that must be reached
before the document becomes effective. In Texas, the law allows for the form
to either be effective immediately on execution, not requiring any limitation
on the competency or capacity of the Principal; or the form can require proof
of incapacity and/or incompetence before the form becomes effective. Make
certain that you do not allow a form that requires proof of incompetence or
incapacity to be used without the required proof. Again, this should be
clearly indicated on the form. If not, the default is to allow the form to be
effective from the time of execution.
II.
Medical
Power of Attorney.
The
Medical Power of Attorney is the health care version of the financial power of
attorney. The form allows the Principal to name an agent to make health care
decisions for the Principal when the Principal has reached a level of
incompetency or incapacity that prevents the Principal from being able to make
such decisions for themselves. This must be determined by a physician who has
examined or is familiar with the health history of the Principal. Please
be certain that the Principal has indeed reached this level of incapacity or
incompetence before permitting the agent under the Medical Power of Attorney
from making any decisions for the Principal. Texas does not allow for the
Medical Power of Attorney to be effective upon execution like the Statutory
Durable Power of Attorney.
Also,
Texas does NOT allow for Co-Agents for a Medical Power of Attorney except in
very rare instances. The agents are generally named in a sequence of
succession and if the person you are working with is not the primary agent
listed, you must have some proof of why the primary agent is not available or
serving as the agent.
Be
aware that there are statutory limitations on some medical matters that may not
be decided by an agent under the Medical Power of Attorney. An agent cannot
require an abortion, mental health commitment, use of psychotropic drugs, or
electroshock therapies. Some of these procedures are allowed under the
Declaration of Mental Health Treatment below. Further, an agent under the
Medical Power of Attorney cannot make any financial decisions or handle
financial matters for the Principal without a financial power of attorney.
III.
HIPAA
authorization. Most of you are well versed in HIPAA. However, there is a lot
of misinformation regarding the use or misuse of HIPAA authorizations. Since
the Texas Medical Power of Attorney is a “springing’ form, it only goes into
effect when the threshold event of incompetence or incapacity is reached, the
agent under the Medical Power of Attorney needs to have a HIPAA authorization
to discuss with the physician whether the Principal has reached a sufficient
level of incompetence or incapacity to enable the agent to effectuate the
Medical Power of Attorney.
Issues
to watch for with HIPAA authorization:
a. The
authorization may have classes or hierarchy of who receives the information.
Make certain that the person you are working with is the primary recipient of
the information or can provide proof that the primary person is not available
to serve as agent under the power of attorney.
b. HIPAA
authorizations may be limited in time or scope. Make certain you have
researched what limitations might be included in the authorization you are
answering.
c. HIPAA
law requires that you provide the MINIMUM personal health information required
to answer the specific request you have received. So, if a potential agent
under a Medical Power of Attorney asks if the Principal has reached a level of
incompetence to utilize the power of attorney, be certain that is the question
you answer, and the only question you answer at that time. Do not go into a
long explanation of the prognosis, diagnoses, or any other unrequested
information.
d. Once
you have given the information to the agent, you are NOT responsible for what
happens to the information. The law ONLY applies to health care providers and
their associates. It does not apply to dissemination by another party, to
church groups discussing someone’s illness at a church gathering, or to a
neighborhood or community group offering to assist someone in obtaining
donations for their medical expenses, unless there are medical professionals in
those groups and then it only applies to those members.
IV.
Advanced
Directive.
The
advance directives were recently updated in Texas. In 2017, the legislature
decided to expand some of the uses of this document. However, generally
speaking the main purpose of the Advance Directive to Physicians and Family
concerns the use of life preserving measures in the treatment of the Principal
in TWO specific conditions: the end stages of a terminal disease in which the
Principal is expected to die within six months, or a vegetative or coma state
for a period of 14-30 days with an unlikely chance of recovering.
The
choices available on the form are to withhold life sustaining measures, keep
the person comfortable and allow them to die as gently as possible; OR to use
whatever life sustaining measures may be available at the time.
Advanced
Directives have no authority over the use of resuscitative measures like CPR or
respiratory treatments.
The
revised form also includes an option for advance stages of dementia or mental
incapacity to the point that the Principal does not know their family or cannot
participate in the activities that give meaning to their life. It also allows
the agent under the Medical Power of Attorney to make a decision regarding the
use of life sustaining measures for any other situation that is not covered by
the form specifically based on their understanding of the choices selected on the
form for the noted conditions.
Many
of these selections are options. Be certain that you have thoroughly read the
form to ascertain what choices were made by the Principal and what limitations
have been placed on life sustaining measures.
It
is also important that you are aware that this document is verbally revokable
at any time by the Principal even if the Principal lacks capacity to otherwise
make decisions for themselves related to their healthcare.
V.
Do
Not Resuscitate
There
is apparently some current issues with EMS honoring Do Not Resuscitate orders.
However, this form is completed by the Principal, the agent under a Medical
Power of Attorney, a Guardian of the PERSON, a legal parent, or two physicians
who have examined the Principal and have determined that to resuscitate the
Principal would be a greater risk to their health than the underlying cause
requiring resuscitation. Generally, these are executed when the Principal is
in advanced stages of disease or debility such that CPR or respiratory measures
are likely to cause severe damage to the individual causing the Principal to
end up in a worse position and in pain and disabled to the point that it is
likely to cause more complicated and untreatable damage than allowing them to
die from the condition that would initiate resuscitation in a healthier
individual. For instance, these are often executed by elderly women in their
late 70s to 90s due to the frailty of their bones, for example, which often
result in broken ribs and/or breast bones that may puncture lungs or other
vital organs during the CPR procedure. An individual, however, may sign the
DNR at any time, at any age, if they decide they do not want to be
resuscitated. This document is also verbally revokable at any time regardless
of the capacity of the Principal at the time.
Be
aware that there are two forms of this document. There is an Out of Hospital
DNR and an In Hospital DNR. Be certain that you are using the correct one.
Also, it is required that the original be presented to EMS or be on file at a
facility where the form is being observed. A copy is not sufficient if the
Principal is at home and EMS is called. Also, be aware, that there are
significant damages awarded for a failure to honor a DNR that was properly
executed and presented at the appropriate time.
Also
be aware that a DNR does not have anything to do with using other life saving
measures like feeding tubes, transfusions, or any other treatment.
VI.
Declaration
of Mental Health Treatment
This
document is not often used but is very important when it is properly executed
and utilized. This document allows the Principal to appoint someone to make
mental health decisions for them. It allows the Principal to specify what
mental health treatments the agent can authorize, what medications the agent
may allow, and may allow the agent to have the person admitted to a mental
health care facility under emergency situations if there is a potential for
injury to the Principal or others. The Principal can execute this document at
any time, and it may be used at any time the Principal is incompetent to make
decisions for themselves or is exhibiting mental illness symptoms that indicate
a high potential for harm to the Principal or another person if treatment is
not administered.
Obviously,
this is a very limited and very specific document. The law does not favor
other people making decisions that could have a permanent affect on the mental
capacity of the Principal without them being able to make those decisions for
themselves. For this reason, under a NORMAL Medical Power of Attorney, the
agent may not approve psychoactive drugs, abortions, electroshock therapy, or
confinement in a mental care facility. These may be allowed under the
Declaration for Mental Health Treatment document.
Also,
this document expires three (3) years from the date of execution unless the
Principal is mentally incompetent at the time of the three year expiration when
it remains in effect until the Principal regains capacity.
This
form is especially useful in situations where there is already a diagnosis of
mental illness that has not yet reached the level of mental incapacity or
incompetence.
A
final note about these documents:
Some
of these documents require witnesses to sign and some do not. It is abundantly
clear when witnesses are required. However, a witness may not be someone
involved in the care of the individual or an employee of the health care
facility where the Principal resides or its parent organization. If a health
care provider serves as a witness, they will need to stop being involved in the
treatment of the Principal, especially if there is any concern about the intent
of the Principal in executing the document.
