Health care decisions are among the most personal and private decisions a person can make. Health information can be very sensitive and, if revealed to the wrong person, cause embarrassment and harm to a person’s reputation. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) https://www.cdc.gov/phlp/publications/topic/hipaa.html was written to include strict protections of privacy in medical information for that very reason.
You might worry how others might judge you and how their opinion of you might change if they knew some piece of private information about your health. Someone who is still within their working years may worry about discrimination if an employer were to learn about a health condition. Someone who is older may worry about losing their dignity and independence if their children find out about a health condition. A parent who has always been head of the family may be afraid of losing their authority and position of honor in the family if their children learn too much about their health and think them frail.
It is your right to keep your health information private, but is that always what is in your best interests? If a sharp decline in health comes on suddenly, it may do more to preserve your dignity if there is someone in a position to be your advocate. You have the right to choose who that will be.
A lawyer’s office is probably not the place you would expect to go to deal with important health care decisions, but health care decision making is an important part of elder law. Elder law includes planning for incapacity. What happens to you while you are still alive, but you are no longer able to understand what is happening around you or to speak for yourself? Who will make your medical decisions for you? A complete estate plan should include a Health Care Power of Attorney, which authorizes someone to advocate on your behalf and authorize or refuse medical treatment for you when you are incapacitated.
If you wish to give someone you trust the authority to make health care decisions for you, you must do so while you still have the capacity. You cannot wait until after the medical emergency that incapacitates you and renders you unable to make or communicate your own decisions. When you need it the most urgently, it is too late.
A Health Care Power of Attorney is valuable even if you do not have a sudden decline in health. Even in more routine medical situations, there is a benefit to naming a health care agent. Consider John’s procedure. John goes to a proctologist for a routine colonoscopy. He was instructed in advance to bring someone to drive him home after the procedure, and he did bring a close friend to wait in the lobby and drive him home after. John is given some strong medication to keep him comfortable, so John is temporarily incapacitated by that anesthesia and unable to make an informed decision when the doctor finds a couple of polyps. The course of John’s treatment depends on whether John ever signed a Health Care Power of Attorney. If John has a Health Care Power of Attorney, the doctor could speak with John’s authorized agent and obtain authorization to remove the polyps right away during the same procedure. If John does not have a Health Care Power of Attorney, the doctor will have to stop and wait until John’s follow-up appointment a week or so later to discuss treatment options with John. John will then have to schedule and pay for another procedure.
You should do more than just name a person as your health care agent. If you have named only one person, what if that person is not reachable when you are having a health care emergency? It is a good idea to have at least two or three Health Care Power of Attorney agents, just in case. You should also give them the information they need to guide them in those decisions.
Consider Phil’s situation. Phil’s wife passed away several years ago, and he named his two daughters as agents on a Health Care Power of Attorney. Phil has always been king of the castle. He takes care of his own matters, and bristles at the idea of discussing his routine health conditions with his daughters. He thinks they will be able to handle his end-of-life medical decisions, but they don’t need to be involved in anything else. When Phil gets dizzy, falls, and is rendered unconscious during a visit with his daughter Janet, she has him rushed to the emergency room. She is asked a lot of questions about his health in quick succession. Who is his primary care physician? Does he take any medications? Has this ever happened before? Does he have any known medical conditions? Janet has none of this information. Without her father’s medical background, she is in a poor position to be his advocate.
A typical Health Care Power of Attorney and Living Will includes guidance on end-of-life medical decisions. That includes whether you wish to be resuscitated, how much medical treatment you wish to receive if you have severe and irreversible brain damage, what life-saving or life-extending procedures do you wish to have if you are dying from an end-stage medical condition, whether you would want to have tube feedings if you can no longer eat or drink, and whether you wish to donate your organs. This can serve as guidance for your agent and for your medical providers. It should not be their only guidance, though. The conversations we have with our loved ones are important. They are important for building a lifetime of memories, and they are also important for your health and theirs. A Health Care Power of Attorney and an informed health care agent could save your life, improve the quality of your care, and ensure your health care wishes are honored. It can be empowering for everyone.
Kelly Appleyard, Attorney