Durable power of attorney for health care
Parents: What you need to know
By NADIA POZO
CS&T Staff Writer
Your college student lapses into unconsciousness in her dorm room. After calling 911, her roommate calls you, in a panic, to say that her friend has been rushed to the emergency room.
She gives you the hosptial’s name and phone number, but when you call, the hospital refuses to give you any information. In fact, they won’t even tell you whether your child is a patient. You may be outraged, but this has been some hospitals’ response to the Health Insurance Portability & Accountability Act of 1996, which is more popularly known as HIPAA, a federal law meant to protect patients’ rights.
That real-life experience was recounted by attorney and author Rita Marker, about a client she represented in California, which is one of three states where she practices law.
“By the time they flew from California to Washington, … she was much better — she had been dehydrated from the flu,” Marker said. “But it illustrates that parents don’t automatically have the authority to make healthcare choices for their children [once they turn 18].
“[HIPAA] protects medical privacy by prohibiting a medical facility from giving out information about a patient unless the patient gives permission to do so,” said Marker, who is also the executive director of the International Task Force, the nonprofit leader in the debate over assisted suicide and euthanasia. “It’s really good, but it also has some unintended consequences.”
One such consequence is that some hospitals throughout the country, in an effort to avoid all lawsuits related to the HIPAA regulations, are refraining from providing information about unconscious patients even to next-of-kin.
Today — unless a family member is named as an agent through a durable power of attorney for health care — a healthcare provider, or a court-appointed guardian, who may never have met the patient and has no idea of the patient’s wishes regarding major healthcare issues, may end up making critical decisions for the patient.
Also known as a “protective medical decision document (PMDD),” a durable power of attorney for health care is a signed document in which the signer designates an individual to make all appropriate healthcare decisions on his or her behalf, if the signer becomes temporarily or permanently unable to make such decisions.
To be legal, the document must be witnessed or notarized — in Pennsylvania, it must be signed in the presence of witnesses.
Traditionally, the common practice had been to give parents information without question, but today, unless there are state default laws in place, that may not be the case.
Forty states and the District of Columbia have laws specifying who can make decisions for a patient who does not have an advance directive — the general term for a PMDD or a “living will.”
Such state laws contain a “priority list” of those who can make decisions for an incapacitated patient.
In many — but not all — of those states, a spouse is designated as first in priority, followed by adult children, parents, and siblings.
In other states, medical decisions for unconscious patients are limited to withholding or withdrawing treatment; they may limit the authority a family member might need to protect the patient’s life. Or, if there is conflict among family members, the patient’s doctors may assume authority over such decisions.
“There is a tremendous amount of confusion about this,” Marker said. “People are reluctant to deal with this topic, because they think they will tempt fate, or assume its only necessary for the dying. …They don’t realize it’s actually essential for the living.”
In states such as California, there are no default laws — so it may be virtually impossible to obtain information about a loved one, much less exercise authority over the patient’s care, unless you have been legally designated by a durable power of attorney for health care, Marker said.
Difference between PMDD and living will
A durable power of attorney is meant for anyone 18 or older, whether in good health or not, and it’s not the same thing as a living will — a common misconception, according to Marker.
A living will gives the power and authority to the “attending physician” to withhold or withdraw medical interventions under certain circumstances, but the “attending physician” can be a complete stranger who is unfamiliar with the signer’s values and wishes. The terms of the document are interpreted by the physician in a manner that may not have been intended by the signer.
“In that case, family members have no legal standing to interpret the meaning of the directive even if they know your values and wishes,” Marker said.
However, with a durable power of attorney, a trusted person who understands your wishes and whom you designate has that authority.
This issue is of such importance and so many people, including lawyers, are confused or unaware of its importance, that the International Task Force has designed an accurate, legal, and carefully worded durable power of attorney for health care to protect a patient’s rights.
A lawyer is not necessary to sign this document.
“Most attorneys are not well informed about advance directives because it’s not an area they really pay attention to. They deal more with property, not life, so it tends to be an afterthought, something thrown in with the estate plan,” Marker said.
Signing the Task Force’s PMDD actually nullifies any living will signed prior to the document, and prohibits euthanasia and assisted suicide as an option to end one’s life, Marker said.
It’s important that a person doesn’t sign a living will after having a designated power of atttorney for health care, Marker said, because a living will — usually interpreted much more broadly and dangerously— takes precedence.
“And it’s what’s not in the document that is often most important,” Marker said.
Marker reminds parents that a power of attorney document “must be signed voluntarily, so parents can’t insist that their children put them down as the agent.”
What’s important is that someone be named. So along with dorm room amenities, be sure to obtain a durable power of attorney for health care for your college-bound son or daughter — no matter how healthy he or she may be — Marker warns.
To learn more about advance directives and the changing health laws or to obtain a PMDD, visit www.internationalhealthtask.org or call (740) 282-3810.
CS&T staff writer Nadia Pozo can be reached at npozo@adphila.org or (215) 965-4614.