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COVID-19 and Incapacity: Why a Power of Attorney and Advanced Health Care Directive Are Needed Now More Than Ever

On Behalf of | Mar 23, 2020 | Healthcare Directive, Power of Attorney

A Boy And Mother Are Wearing Protective Masks

No matter your age, asset profile, or state of health, during these days of COVID-19 sheltering-in-place, long grocery store lines, and cabin fever, you may well be feeling a bit at sea during these unusual times. It seems right now that there are so few things in our control as we all try to homeschool our children, shop online, and attend Instagram dance parties.

But protecting yourself and helping your friends and family care for you are very much in your control. The first step is to create a power of attorney and Advanced Health Care Directive to allow your loved ones to care for you and to let your family, friends, and doctors know what your preferences are for your medical care.

What Is A Power Of Attorney?

A power of attorney names the agents you wish to act on your behalf for financial matters should you become incapacitated. This document can give this power to your agents immediately (we call this a durable power of attorney) or upon the onset of an incapacity (this is called a springing power of attorney).  The power of attorney allocates certain powers to your agents.  This document must be notarized and the original presented to any institution where your agent needs access to your accounts or information.

How do you know if you need a durable or springing power of attorney?

For clients with chronic medical conditions, older clients, or clients in unique situations, we advise that your power of attorney be durable. This means that once the document is signed, dated, and notarized, your agents have the power to act on your behalf. For younger clients, a springing power of attorney may be preferable. However, if you have a springing power of attorney, your agent will need to obtain a doctor’s note regarding your incapacity before the power of attorney powers can be exercised by your agent.

Does the Power of Attorney ever expire?

A power of attorney does not have an inherent expiration date. However, if you have changed your preferences for your agents or even the order of preferences for agents, you will need to create a new Power of Attorney document. Handwritten changes to this document are not valid.

It is important to know that many financial institutions will not honor a power of attorney document that is more than ten years old. If you created a power of attorney more than ten years ago, we advise you to create a new one as soon as you can.

Can the agent under my Power of Attorney change my will?

Your agent acting under a valid power of attorney cannot change your will.  However, your agent can amend or create a trust on your behalf if this power is expressly granted in the power of attorney document. Agents have extensive powers to be able to manage your assets and finances, so make sure you have trustworthy agents.

Does my agent need to be local?

With the proliferation of services available via online platforms, mobile banking, chat services and phone banking, the need for your agent under your power of attorney to live nearby is less important than it once was. Many banks have branches in multiple states and most financial advisory firms are national. If the bulk of your finances are handled through local banks and credit unions without many branches, then you should absolutely pick agents that live close by so that they can easily visit the branch as necessary.

What Is An Advanced Health Care Directive?

An Advanced Health Care Directive is a document that allows your agent to make medical decisions on your behalf. This is particularly important as we discover more about the potentially severe effects of COVID-19. As a young healthy adult, you may feel like you’re immune to the statistics. But should you need hospitalization of any kind, as a legal adult (age 18 and older), your parents do not have the automatic right to speak with your doctors about your care. You need to appoint your parents as your agents and include them in your HIPAA waiver.

Your Advanced Healthcare Directive also lets you document your wishes for care should you be diagnosed with an incurable condition. You can also document your wishes for organ donation. These are important decisions that you should document so that in times of medical emergencies, your friends and family know your wishes.

Does my agent need to be local?

Unlike with your agent choices for your power of attorney, you should pick agents for your Advanced Health Care Directive that are local and available. Your health care agents will need to be able to speak in person with doctors, nurses, and health care facility administrators. Your medical condition may be critical, requiring decisions to be made when time is of the essence. So as much as possible, pick health care agents that are local.

Can I use the form provided by my hospital/HMO/doctor?

Many medical facilities and hospitals have their own Advanced Health Care Directives for patients to complete. You should complete this form as directed by your doctor. However, if for any reason you are hospitalized in a hospital or facility other than the one where you completed your directive, your friends and family will be unable to use your completed directive. An institution based Advanced Health Care Directive is normally on file with that institution and may very likely not be honored at another facility.

What Is A HIPAA Waiver?

The Health Insurance Portability and Accountability Act (HIPAA) was passed by Congress in 1996.  This act, among other provisions, requires the protection and confidential handling of protected health information.

A HIPAA waiver is a document that allows the people you designate to have access to your medical records.  Hospitals often ask for this document before discussing any patient details with friends and family.  There is, in fact, HIPAA waiver language included in the Advanced Health Care Directive. However, for practical purposes, it is advisable to have a standalone HIPAA waiver in addition to the Advanced Health Care Directive. Often, doctors, nurses or medical facility administrators or personnel do not closely ready the Advanced Health Care Directive document.  The standalone HIPAA waiver makes the process easier for your doctor to speak with your friends and family.

Who can be named in my HIPAA waiver?

Your HIPAA waiver should at a minimum list the same people you have listed as agents in your Advanced Health Care Directive. You can include additional people on your HIPAA waiver beyond the agents you named in your directive. For example, you may have listed your sister and brother as agents under your Advanced Health Care Directive, but you may want to include your parents on your HIPAA waiver.

What powers do the people listed on my HIPAA waiver have?

The people listed on your HIPAA waiver have no power to make medical decisions on your behalf. They only have the ability to speak with nurses, doctors, and medical personnel regarding your condition, prognosis, and treatment.

Now is the time to get these documents in place and take back some control over your life and care. Stay well, stay healthy, and stay protected.


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