Today is National Health Care Decisions Day. I personally encourage everyone who is at least 18 years of age to have a Health Care Power of Attorney and Living Will (also known as Advance Directives). These documents will help ensure that your wishes, and not someone else's, will be followed should you be in an end of life situation and unable to communicate.
The North Carolina Legislature has revised (long overdue, in my opinion) the statutory Health Care Power of Attorney (HCPOA) and Declaration of a Desire for a Natural Death forms. The Living Will (LW) is now called "Advanced Directive for a Natural Death." Both forms offer more choices in terms of treatment options, etc., and allow one to designate whether or not the agent under the HCPOA can override the instructions in the LW.
Since these new forms are improvements on the old ones, I recommend that everyone execute a new HCPOA and LW, as well as a separate Authorization for Disclosure of Protected Health Care Information under HIPAA. These are important legal documents, so it's a good idea to consult with your attorney and physician prior to signing them. It is also important to make sure that the strict witnessing and notarization requirements are met.
North Carolina residents who wish to donate their organs after their death will now have more assurance that their wishes will be respected. For years, NC organ donors have been able to have a red heart placed of their drivers license to indicate their intent. Effective October 1, donors' intent will be legally binding, meaning that, theoretically at least, family members cannot override the decision.
However, I believe that the law will not always be respected when health care providers are faced with objecting family members. After all, they can file a lawsuit if they feel strongly enough, while the donor obviously can't!
See this article on Charlotte.com
A committee of the North Carolina House approved a bill changing the Declaration of a Desire for a Natural Death (Living Will) and Health Care Power of Attorney laws and the statutorily approved forms. The bill was passed by the Senate in May. The next step is study by the House Judiciary Committee. I haven't had a chance to review the bill yet, but hope to opine on it once I do.
Continue Reading...This article is from the website of the National Care Planning Council.
Services from care managers should be something that every family takes advantage of, but in reality very few families use them. Care managers could go a long ways towards helping the family find better and more efficient ways of providing care for a loved one.
The concept is simple. The family hires a professional adviser to act as a guide through the maze of long term care services and providers. The care manager has been there many times. The family is experiencing it usually for the first time.
Hiring a care manager should be no different than hiring an attorney to help with legal problems or a CPA to help with tax problems. Most people don't attempt to solve legal problems on their own. And the use of professional tax advice can be an invaluable investment. The same is true of using a care manager.
Unfortunately there are too few care managers and the public is so poorly informed about the services of a care manager, that valuable resources that could be provided go lacking.
The irony of not using a care manager is that most families -- when given the opportunity to use the care manager -- think they can do it themselves and will not pay the money. Yet the services of a care manager most likely will save them considerably more money then do-it-yourself. The cost of the care manager might be only a fraction of the savings the care manager could produce. Care manager services can also greatly reduce family and caregiver stress and help eliminate family disputes and disagreements.
Even the Yellow Pages do not cooperate in helping the public find care managers. To find a care manager one must look in the Yellow Pages under "Senior Services". Who is going to know to look under that subject?
Continue Reading...Why make sure you and your loved have signed authorizations allowing family members access to medical records? Here's a good example. Although this story takes place in Massachusetts, HIPAA is a federal law, and similar problems can arise in any state. I recommend that all of my clients execute HIPAA Authorization Forms. See my posting on HIPAA.
The recent highly publicized disputes over of the disposition of the bodies of James Brown and Anna Nicole Smith has lead me make an extra effort to ask clients about their wishes for cremation and/or burial. The wishes should not only be communicated to family members, but reduced to writing to provide evidence should family members later disagree. Besides including the instructions in a Will, it may make sense to include them in a Health Care Power of Attorney.
In North Carolina, a person can only authorize his or her own cremation in a Will, Health Care Power of Attorney, Preneed funeral contract, offical cremation authorization form, or a written statement witnessed by two people. In other words, a simple note in one's own handwriting, with no witnesses, is not valid. Click "Continue Reading" to view the NC law on cremation authorization.
Continue Reading...In 2003 the U.S. Department of Health and Human Services finalized regulations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Under HIPAA, medical providers can face sanctions and monetary fines for unauthorized release of “Protected Health Information”. As a result, medical providers are very reluctant to release records to anyone other than the patient.
What Information is Protected?
Under HIPAA, protected health information includes anything created or received by a “covered entity” relating to an individual’s physical or mental conditions or health care, and that could be used to identify the individual. Covered entities include health care providers, pharmacies, nursing facilities, and insurance companies, as well as other health care-related entities.
Since the definitions under HIPAA are so broad and, as a result, medical providers will not release information to anyone other than a patient, a complete estate plan should always include a HIPAA authorization.
How to Authorize Release of Protected Information
A traditional Health Care Power of Attorney (HCPOA) allows an individual to name an agent to make health care decisions when and if the individual is incapacitated and cannot make such decisions. Even if the document was prepared during or after 2004 and HIPAA release language is included, the authorization arguably does not become effective until the HCPOA becomes effective, thus limiting its utility. In addition, a stand-alone HIPAA authorization is now viewed as the preferred method per the regulations. Without a signed HIPPA authorization, even a spouse or adult child of an incapacitated patient will not be able to receive information on the patient’s condition.
HIPAA authorizations allow individuals to name specific people to whom medical providers may release records. An authorization should, at the very least, allow medical providers to release records to an individual’s agent under a HCPOA. An authorization may also include an agent under a Durable Power of Attorney, a trustee of a trust or an individual’s attorney for the purpose of determining incapacity.
Conclusion
If you would like to make sure that your family members will be able to access your medical records so that they make informed decisions on your behalf in the event of your incapacity, it is imperative to have both a valid HCPOA and HIPAA authorization. Have an estate planning attorney prepare the documents for you ensure that they are properly drafted and signed.
Continue Reading...Yesterday a client brought in a copy of this New Times Article by Jane Brody: Medical Due Diligence: A Living Will Should Spell Out the Specifics. As an elderly man, he was concerned that his wishes might not be respected under his North Carolina statutory living will. He was right to be concerned. North Carolina's standard form, entitled Declaration of a Desire for a Natural Death, contains only statements that "extraordinary means" for keeping one alive are not desired and allows a choice as to whether artificial nutrition and hydration should be withheld or discontinued. There are no provisions for more detailed instructions. In my opinion, the state should revise the form to allow much more specificity. Many states have such forms.
Because of the limitations of the North Carolina statutory form, I often provide clients with a "Medical Directive" which is designed to meet the requirements of NC law, but allows one to specify whether certain procedures or medications are desired or not. The Medical Directive is often used with the Living Will.
Finally, it is imperative that each person also have a Health Care Power of Attorney. The Health Care Agent can give direction to health care providers regarding end-of-life care.
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