Health Care Powers of Attorney and Living Wills
Health Care Powers of Attorney authorizes your Health Care Agent to make medical decisions for you if you are completely unable to express your own Health Care wishes. The Living Will is the document used to declare your personal affirmative declaration as to whether you desire a natural death and other related end of life care decisions.
Health Insurance Portability and Accountability Act (HIPAA) Release
The HIPAA Release gives the person(s) the right to obtain your medical information on your behalf. It is imperative that your Health Care Agent be given this authority to obtain your medical information so they can make informed decisions on your behalf.
Health Care Powers of Attorney/Living Wills in Lieu of Guardian of the Person
Health Care Powers of Attorney and Living Wills and HIPAA Releases sometimes may be used in lieu of a guardianship and conservatorship. Typically, if a Health Care Powers of Attorney, Living Wills and HIPAA release are properly executed, a guardianship of the person is not necessary. Additionally, the cost to secure Health Care Powers of Attorney and related health directives is low in comparison to the court-administered process of guardianship of the person.
Health Care Powers of Attorney and related health care directives can be executed by the adult with special needs only if he or she has sufficient mental capacity. If he or she can execute the Health Care Powers of Attorney and related documents to establish the relationship between parent or other appointed individual as Health Care Agent it should be done promptly. This is very important to avoid interruption of the ability to continue to assist the adult with special needs after their eighteenth (18th) birthday.
If the adult with special needs is diagnosed with a cognitive impairment affecting his or her decision-making capacity, it is important to secure a medical opinion as to the adult child’s mental capacity. If decision-making capability is not a factor, then it is general practice that an adult child with sufficient capacity must be able to consciously understand (1) The nature of a Health Care Powers of Attorney and related documents; (2) the effect of signing a Health Care Powers of Attorney and related documents such as when the power begins and the subject matter over which the health care agent can exercise control; (3) The Health Care Powers of Attorney can be limited or broad; (4) The Health Care Powers of Attorney and related documents can be revoked so long as the adult with special needs possesses the mental capacity to revoke the documents; and (5) The Health Care Powers of Attorney and related documents continue even if the adult with special needs later becomes incapacitated.
To determine whether the adult with special needs possesses the requisite mental capacity to execute a health care power of attorney and related documents, the attorney should consult with the client (adult with special needs) alone without parents or other persons to ensure the decisions are made without the influence of his or her parents or other persons.
When possible, adults with special needs who possess the requisite mental capacity should execute a health care power of attorney, Living Wills and HIPAA release to avoid the need for a guardianship of the person, if possible.