Oftentimes in medical dramas, like ER or Grey’s Anatomy, when something terrible happens and a person is injured we see an exchange between the medical professionals and loved ones of a patient. It typically starts with the loved one asking how the patient is doing; from there, the scene plays out in one of two ways:
- If the person asking is an immediate family member or spouse of the patient, the doctors willingly provide regular updates on the extent of the patient’s injuries or how their recovery is progressing, or;
- (This is usually where the heartbreaking drama comes in.) If the person asking is a close friend, lover, or even a fiancé of the patient, we hear the doctors sadly explain that because they are not an immediate member of the patient’s family, they are unable to disclose any information about their injuries, prognosis or recovery, unless or until the patient gives permission themselves.
But what we don’t frequently see play out in these small screen dramas is a situation where the loved one questioning the doctor (regardless of their relationship) has been named the healthcare power of attorney (POA) for the patient in question. How can this circumstance change the scene, if at all? Furthermore, what kind of “power” does a healthcare POA grant? Without one, do the state-specific HIPPA laws default responsibility to a specific family member (i.e. a spouse or eldest child)? Does that family member then have the authority to withhold information from other family members? Or does the decision remain solely in the hands of healthcare providers to use their discretion in deciding with whom to share information?
What is a Power of Attorney (POA)?
Back in 2016, we answered this question and several others pertaining to the benefits of Estate Planning throughout your lifetime. It boils down to this: a Power of Attorney (POA) is a paper that authorizes another person to make decisions on your behalf. When drafted properly, the POA gives another person, known as an agent, the legal right to make decisions (as outlined specifically in the POA) on behalf of the person who made the POA, known as the principal. POAs can be created to last a specific amount of time or from a set start date lasting indefinitely.
How ‘Power’ful is a POA?
A POA can be drafted for several different situations: to handle business matters, family matters, real estate transactions and medical situations. For the purpose of this blog, we will focus on how a POA works in medical situations (i.e., healthcare POA’s).
A healthcare agent is someone who will be making medical decisions for you in the event that you are incapacitated and otherwise unable to make your own decisions. Choose your healthcare agent wisely, as your fate could literally rest in their hands one day. A healthcare power of attorney is more powerful than a living will. A living will is only applied if you are terminally ill or in an irreversible coma. If you are temporarily unconscious and unable to communicate but are not in any sort of end-stage condition, a living will would likely be ineffective; what you’ll need in those situations is a healthcare power of attorney. A living will isn’t totally useless in these situations, however, as they can be used to provide guidance to their healthcare agent.
Your healthcare power of attorney can be as powerful as you want it to be: giving your healthcare agent complete control over your decisions while incapacitated. It can also be as restrictive as you want it to be: outlining how any possible medical situation is to be handled, limiting the types of decisions your agent can make.
What happens if there is no POA?
Generally, in the event that there is no healthcare POA in place, the responsibility will fall to the most immediate family member (i.e. a spouse or eldest child) to make decisions for the patient in question. In Maryland, the statute “Absent a Valid Medical POA” and surrogacy laws would come into play in this situation. This gives priority to the spouse to make medical decisions for another spouse; and his or her children would come second. This often creates discord among families though, leaving room for jilted members to voice their disagreements on a decided course of action. Even more difficulties can arise in the event that there are no immediate family members available at all. In this case, the responsibility falls on senior medical professionals attending to the patients’ case.
What about Information Sharing?
This is a question we get asked a lot by our Estate Planning & Probate clients. Healthcare Powers of Attorney pertain specifically to medical decisions. Information sharing is a separate issue and ultimately that decision rests in the hands of the medical professionals attending to the case. They would use their knowledge of Federal HIPPA laws, hospital policy and any additional information their able to glean about the familial relationships to decide who should receive information and who should not.
Don’t delay, call today!
Your life doesn’t have to be a medical drama; any issues that arise likely wouldn’t be solved in a neat 45-minute block, anyhow. Spare your loved ones any heartbreak or drama and yourself any worry about the “what ifs” and give us a call today. Ferrante & Dill, LLC partner and Estate Planning & Probate attorney Jennifer Dill is ready and willing to answer any questions you may have about drafting a Healthcare Power of Attorney. Give her a call at (410) 535-6100 or send her an email at firstname.lastname@example.org