In Plain English: Health Care Proxy and Power of Attorney

May 21, 2020 Austin F DuBois

The importance of having the right documents and naming the right people to help you when time gets tough has been brought to light by COVID-19's impact on family members in assisted living and nursing homes, as well as front-line essential workers like nurses and other health care professionals. This article is about the basic documents everyone needs to have in place, but most importantly those whose health may be most at risk.

Friends, family, coworkers and the Internet are full of varying information about the appropriate documents to have in place when your health is at risk, or failing, or if you’re just undergoing a rough patch or treatment of a condition. As a professional that works in these situations on a regular basis, here are the facts.

The bottom line is that everyone needs to formally choose and appoint someone to help them if they’re unable, or less able, to help themselves. This person usually is a spouse, adult child, or other family member or close friend. There are two basic categories of helper: (1) in health care situations, and (2) in financial/banking/asset management situations.

Even though much of our practice here at DuBois Law Group, PLLC focuses on protecting assets, we always prioritize people, their health, their daily lives, and the real world. So first, let’s focus on the health care documents:

  1. Health Care Proxy – this document is also sometimes referred to as a Health Care Power of Attorney, or perhaps an “appointment of agent for health care decisions”. They are all basically the same idea, which is that you are appointing one person, and hopefully another backup person, to make health care decisions for you if you are unable to. Whether it be due to being unconscious after an accident, or under anesthesia, or having lost your mental capacity due to onset of severe dementia, naming a person in a Health Care Proxy avoids having those decisions made solely by unrelated staff at a medical facility or a court. Sometimes more importantly, it avoids arguments and disagreements between family members that have differing opinions, but equal standing, to make decisions, such as adult children. It allows someone you trust, that loves you, to make a decision that is in your best interests, as they know to be what you want.
  2. Living Will – this document is your expression of what sort of treatment you would like, or would not like, to receive if you are alive but unable to express your desires. Most commonly people think of this as the “pull the plug” document, because if your incapacitated condition is temporary, most people’s desire is for that condition to be treated and to be brought back to a state where they are conscious and can state their desires about further treatment. But for situations where you are in a permanent vegetative state with no reasonable hope for a meaningful recovery, the Living Will (literally, your “will”, or intention, while you are “living”, or alive) says to not give you life support to perpetuate that state. This is you making that decision when you sign the document, to alleviate the burden on your family. Many of my clients have come to me after having gone through an experience where they’ve had to make such a decision, and it is truly heartbreaking. They made the choice to do the appropriate planning to ensure that their spouse or children do not have to go through a similar hardship. For more information and to see how this is different than a “living trust”, see this blog post).
  3. HIPAA Release – this document appoints however many people you would like to be able to receive health information about you. The Health Information Portability & Accountability Act (HIPAA) ensures that your health information is protected–health care providers must keep it confidential and not provide it to anyone without your consent. Therefore, it’s important that you indicate to them the people you consent to releasing health care information. It’s best thought of as who you want to be able to be in the room when the doctor’s talking. I often tell clients to err on the side of being inclusive, since this document does not give anyone authority to make decisions (that’s the Health Care Proxy).

Finally, it is important to have a properly drafted General Durable Power of Attorney. I say “properly drafted” for a very specific reason: at least 9 out of 10 powers of attorney that clients bring to me that have been done by other lawyers (and 10 out of 10 that have been done online) are NOT properly drafted. And that has very heavy impacts on people’s families, and their assets. Sometimes the power of attorney isn’t valid at all. Other times, most commonly, the power of attorney does not having “full gifting authority”, which basically means that if someone requires long-term care, and it’s going to cost that person $13,000 per month and rip through their savings and threaten the equity in their house, the agent named in the power of attorney DOES NOT have the authority to protect that equity and life savings. The family is then forced to go through a lengthy and expensive court proceeding to get a guardianship, all the while paying those high long-term care costs, and hoping that there will be enough money left over after all that trouble and cost to still protect some of it. For the middle-class families that are my clients, that have worked their entire lives to pay off their house and work up a respectable savings, it adds significant insult to injury to see that happen.

The best plan, of course, is one that is done proactively, before dealing with any critical health care situation, and done with an attorney that is experienced in dealing with these situations both proactively and reactively. We at DuBois Law Group, PLLC take great pride and honor in helping families address these needs.