Legal Documents for Medical Situations.
Why do you need a medical Power of Attorney? And is that all you need as your parents get older? What about a Medical Directive or a HIPAA release? What do you need to know about a “DNR” (Do Not Resuscitate) order? And is there a reason why you can’t DIY these documents and do them yourself?
The legal side of of medicine as you help your aging parents can be confusing and complicated.
Kim and Mike Barnes of Parenting Aging Parents talk to Jeff Barnett and Keith Leuty, lawyers with PAP Sponsor Barnett & Leuty PC to get answers to these questions and more.
Read the full transcript
Transcript of Interview: “Do I need a Medical Power of Attorney?”
Mike Barnes:
I think a lot of us, when our mom or dad has to be in the hospital or they’re sick for any reason, worry about things like whether we need a medical power of attorney or anything else.
Kim Barnes:
I might think, “Oh, I have a power of attorney,” not necessarily realizing that it might be the durable one and not the medical one. So today, we have Jeff Barnett and Keith Leuty from Barnett and Leuty Law Firm with us to help us understand the distinction. I think there is sometimes confusion, thinking, “I have a power of attorney,” not realizing it’s important to have both. Today, we’re going to focus on the medical legal documents we need, including the medical power of attorney. Talk a little about what’s different between the medical power of attorney and what that allows you to do.
Jeff Barnett:
All right, well, a durable power of attorney, often called a financial power of attorney, basically covers all financial, property, and legal matters. A medical power of attorney is only for medical needs. You could almost think of it in reverse: the medical power of attorney is for medical needs only, and the general power of attorney is for everything else.
Keith Leuty:
The medical power of attorney comes into play if somebody is incapacitated and unable to make medical decisions for themselves. It’s what we call a springing legal document, meaning it’s inactive until a doctor determines that their patient doesn’t have the capacity to understand and make medical decisions. The doctor signs a physician’s affidavit verifying that fact. Even before they do that, we found that for some doctors, every place is different, but if a person is named as the future or presumptive medical power of attorney, it sometimes brings extra comfort to the doctors. This allows a family member or friend to be involved in the consultation even at an early stage.
Kim Barnes:
That was actually the question I was going to ask. Sometimes we think of incapacitation as a coma or being unresponsive, but it also comes into play with cognitive issues, dementia, Alzheimer’s, and things like that. But that is a little trickier, isn’t it?
Jeff Barnett:
Sure, yeah, absolutely. Sometimes it can come on suddenly due to head trauma or a similar situation, but often it comes on gradually with dementia and Alzheimer’s.
Keith Leuty:
The really tricky situations are when someone has something like Sundowners, where they’re fine in the morning but not as the day goes on. The doctor’s not going to sign and rescind the affidavit repeatedly, so it can get tricky.
Mike Barnes:
Do you need a power of attorney to talk to a doctor, whether Mom or Dad is incapacitated or not, to discuss what’s wrong?
Jeff Barnett:
What you may be thinking of there is a HIPAA release. A medical power of attorney allows the agent to make decisions and consent to medical care, but the HIPAA release is what allows them to receive medical information. The HIPAA law protects individuals’ personal information, so you need a HIPAA release to waive that privilege and allow someone to receive medical information.
Kim Barnes:
If I’m worried about my parent and they’re not telling me what’s going on, but I have the medical power of attorney, I need to know if I can find out that information.
Jeff Barnett:
Not just with the power of attorney, especially the springing type. The medical one is always a springing type. The property and financial one can be made immediate or springing.
Kim Barnes:
Do you have any suggestions on how to have that conversation with a parent who is very private and doesn’t want to give you medical power of attorney or a HIPAA release?
Keith Leuty:
That’s a tough question because it’s so person-specific. Sometimes it’s about finding someone they might open up to more. For instance, if a dad is having prostate issues, he might be more comfortable talking to a son rather than a daughter. It’s also helpful to have these documents in place while everyone is healthy so it’s not seen as an immediate crisis.
Kim Barnes:
Maybe doing it early on, while everyone is healthy, so it’s just something you have in place might help. Playing to their sense of practicality.
Jeff Barnett:
Exactly. You can say, “I’m not wanting to pry into your business right now, but someday you might be in a coma or have dementia, and I may need this information to make proper decisions for you.” It’s about being prepared.
Keith Leuty:
Money talks. If you have both a medical and a durable power of attorney in place, you’re pretty much covered for any situation. Without them, you might need to seek guardianship, which is costly and involves going to court frequently. The cost difference and the hassle can often convince even stubborn people.
Mike Barnes:
If Mom or Dad has a medical power of attorney with a HIPAA release, what else do they need to make sure I can take care of them?
Jeff Barnett:
They should also have a directive to physicians, commonly known as a living will or an advance directive. This document specifies what should happen if they are incapacitated and have a terminal or irreversible condition. It states that they don’t want any medical treatment other than what is needed to keep them comfortable.
Keith Leuty:
Doctors love when people have this because it takes the pressure off them and provides peace of mind for the family. The family can respect the wishes of their loved one without feeling guilty.
Kim Barnes:
We also hear about the DNR, the Do Not Resuscitate order. Is that part of the directive to physicians?
Jeff Barnett:
No, that’s a different document. A DNR is an out-of-hospital order that says if you’re found without a pulse, you don’t want to be revived. Most people don’t need a DNR unless they have a terminal condition or are very elderly.
Keith Leuty:
We often see people with DNRs that were signed during minor surgeries. It’s for the protection of the doctors and hospitals, but people hang on to them thinking they’re important. You shouldn’t have an active DNR unless you’re ready to go to heaven today.
Kim Barnes:
So, as our parents get older, they might choose to have one. Is it true that you need both an out-of-hospital DNR and one for the hospital, and that it should be visible?
Jeff Barnett:
Yes, visibility is crucial. If paramedics or doctors are unaware of the DNR, they will revive you. It’s important to have it with you at all times and posted visibly in your home.
Kim Barnes:
Sometimes we hear, “Can I just print off a HIPAA release or medical directive online?” What are the risks of DIY legal documents?
Keith Leuty:
The risks are substantial. People who don’t know what they’re doing don’t realize what’s missing. Pre-printed forms might not include everything necessary. It’s important to consult with an attorney to ensure all parts are there and correctly filled out.
Jeff Barnett:
An attorney has specialized training, just like a dentist. Legal documents need to be accurate and complete to be effective.
Kim Barnes:
Since you’re Texas attorneys, will the language be different in other states?
Jeff Barnett:
The forms and language can vary slightly by state, but the gist is the same. It’s important to use state-specific forms and consult with an attorney in your state. The documents are valid across state lines, but it’s best to use forms specific to your state for legal nuances.
Keith Leuty:
We keep scanned copies of documents for our clients. If they need them while away from home, we can quickly send them electronically.
Kim Barnes:
Good to know. There’s a lot to take care of.
Mike Barnes:
Jeff Barnett, Keith Leuty, thanks so much for clearing things up.
Keith Leuty:
Our pleasure.
Mike Barnes:
It teaches us to be prepared and have all necessary documents in place, whether it’s for our parents or ourselves.
Kim Barnes:
The earlier you do these, the easier it will be.
Mike Barnes:
Absolutely. If you have any other topics you’d like us to discuss, please let us know. Parenting Aging Parents.
*This transcript is auto-generated. Please excuse any typos or mistakes.
