Friday, April 4, 2008

Health Care Powers of Attorney

So, you have a stroke and you are lying in a hospital bed unable to make any medical decisions for yourself. Who is going to do it for you? If you are married, your spouse….to a degree. If you are not married, someone may have to go the court to get authority to gain access to your medical information and then make decisions on your behalf.

Back in the day, these sorts of things were relatively easy. The doctors would work with “the family”, including spouses and children. But as of late, and especially since the passage of HIPPA, the medical privacy act, it has become an insurmountable chore to deal with these types of issues.

Don’t assume that your spouse has the authority to make decisions for you. The bureaucracy created by HIPPA and related legislation now makes it almost impossible for even the patient to get information for himself. When my father who was dying in St. Elizabeth’s Hospital, after being on its staff for 50 years as an oral surgeon and head of its intern program, called down to the lab to get some test results, the lab refused to give them to him unless he got out of bed, IV and all, and trekked down to the lab to prove who he was personally. Horror stories abound with this sort of thing.

The solution is something called a Durable Power of Attorney for Health Care (DPOAHC). It gives the authority to make health care decisions on your behalf to someone you trust if you are unable to make them for yourself. When you check into a hospital now, it is the second document that is requested after your insurance card…even more important than a living will.

Yes, spouses should have these things naming each other. It eliminates any red tape one might encounter. If your spouse is unable or unwilling to accept the responsibility, name only ONE of your children… not two or three. If a tough decision needs to be made, it eliminates a family squabble. If there are no children, pick a trusted extended family member or friend to help you out in these very important matters.

The most important power under a Health Care Power of Attorney is the decision to pull the plug, so to speak, if you become brain dead with no hope of recovery. It is redundant to a Living Will, but gives the doctors some added protection, as well as giving a degree of comfort to those having to make the decision.

But mostly Health Care Powers of Attorney are utilized when one becomes incapacitated with a stroke, for example, and cannot make decisions for him/herself. Decisions relating to rehab, or nursing homes, or other long term care choices are handled by the holder of the Power. I hold Health Care Powers for several of my clients with no family. Decisions I make range from whether the individual should get a flu shot to doctor choices or whether to call an ambulance if the client is unresponsive. These aren’t frivolous matters. The Terry Schiavo case of several years ago is a prime example of what can happen if there is no written Health Care POA.

The State of Ohio makes available pre-printed Health Care POA forms; but pre-printed doesn’t mean unimportant. On the forms, the maker of the Health Care Power must specify whether or not artificial hydration or feeding should be discontinued under specified circumstances. There are also blanks for specific instructions in special types of situations that the individual may face. Finally, it must either have two witnesses or be notarized.

As an attorney, I can tell you that years ago, forms like this were afterthoughts. Today, this form is probably one of the most important things I discuss with my clients, and spend the most time in helping them make decisions relating to very complicated and emotional issues.

Finally, Heath Care POA’s are NOT financial Powers of Attorney. Those are completely different animals, and should be addressed separately.

As always, make sure to consult a professional in all matters such as this. Anyone can generate a document. It is the information and advice that comes with it that are important.

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