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Sorting out Advance Directives Posted By Chris Dimick on Dec 7, 2010 Important di erences exist in advance directives, the legal documents that authorize an individual to manage

another person’s healthcare. It can be confusing to determine which types of directives grant which people which

rights, including the right to access the patient’s medical records.

At best, the confusion results in frustration; at its worst, it can delay or block access to health records that help

manage care. For patients and their caregivers, it is important to determine the advance directives they may need

well in advance of needing them.

For the HIM professionals in hospitals and other care settings who receive requests for health records, knowing

the rights and requirements related to advance directives is essential for ensuring that con dential patient

information is disclosed only to authorized persons.

A Personal Story

After 50 years of marriage, Rosa Taylor-Payne noticed even the slightest change in her husband, Marvell Payne.

So she started to worry when he would drive past their destination or forget the most direct route.

After his memory loss and confusion increased in 2006, Payne underwent psychological and neurological exams

to con rm what his wife had already noticed. His memory was failing, and the cause was Alzheimer’s disease.

Concerned for her husband’s health and wanting to help, Taylor-Payne was shocked when she was repeatedly

denied access to his medical information. Federal privacy laws prohibited the disclosures to Taylor-Payne, even

though she was his spouse.

“It made me upset. This is my husband and I’ve been with him for so many years, but they didn’t give a rat about

how long I had been with him, they just weren’t going to give [the medical information] to me,” Taylor-Payne says.

“It was just frustrating every time you tried to get information about him, and they won’t give it to you because of

HIPAA law and all this other stu . I didn’t care—this is my husband.”

The Paynes soon learned that if Marvell Payne completed a durable healthcare power of attorney form that

designated his wife as his healthcare agent she could take the active role in his care they both wanted. The

document would allow Taylor-Payne to sign documents, access and review all of her husband’s medical

information, and help actively manage his treatment.

After consulting a lawyer and drawing up several advance directive documents, Taylor-Payne had no further

problems receiving the records to help her husband with his care.

The Di erences in Advance Directives

Advance directives like the durable power of attorney that Marvell Payne completed legally establish who can

handle a person’s healthcare and nances should the person become incapacitated.

They are the legal documents that a person (the principal) completes that grant another person (the agent) the

right to act on the principal’s behalf. A person must be capable of understanding and signing an advance directive

in order for it to be e ective. Depending on the principal’s wishes, the directive may take e ect before or after he

or she becomes incapacitated.

Advance directives are meant to serve as a backup in case a person can no longer handle his or her own

healthcare and nances, says Elizabeth Gould, MSW, LCSW, the director of state programs at the Alzheimer’s

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Association.

There are major di erences between advance directive documents and the rights they grant both principals and

agents, says Leslie Fried, senior attorney at the American Bar Association’s Commission on Law and Aging and

Director of the Alzheimer’s Association’s Medicare Advocacy Project, based in Washington, D.C. Knowing the

di erences helps a person select and use the right advance directives for his or her situation.

Six advance directives and patient proxy arraignments are common in healthcare.

1. Power of Attorney for Healthcare and Finances

Power of attorney documents legally enable an agent to make nancial and medical decisions for the principal.

Power of attorney for healthcare and power of attorney for nance are typically drawn up in separate documents.

The power of attorney for healthcare allows named agents to represent the principal on all healthcare decisions

and grants them access to a person’s medical records. These decisions can include choosing a doctor for the

principal, authorizing forms of treatment, and selecting care facilities. The agent presents the document to a

hospital as proof that he or she has been named as the principal’s healthcare agent and can legally make

decisions on the principal’s behalf.

The power of attorney for nance grants an agent the ability to make decisions about the income and assets of

the principal. This includes paying bills and buying or selling property. An agent could present this document at a

bank when withdrawing money for the principal.

A power of attorney for healthcare does not grant a person’s agent the ability to handle their nances. Similarly,

the agent named in a power of attorney for nance cannot make decisions regarding the principal’s care and may

not access the principal’s healthcare records.

Not knowing this distinction can lead to confusion and con ict. Some people incorrectly assume that because

they are the agent in one form of power of attorney, they are the agent for all of the person’s a airs.

2. Durable Power of Attorney

The power of attorney designation is not permanent. It becomes invalid if the principal becomes mentally or

physically incapacitated.

Only a “durable” power of attorney allows an agent to handle another’s a airs in the event of incapacitation—if the

principal became mentally incapable as a result of Alzheimer’s, for example, or fell into a coma following a car

accident.

Many lawyers recommend creating a durable power of attorney for healthcare and nance for this reason, Fried

says. State laws vary greatly on all advance directives, but speci cally on durable power of attorney. In some

states, the durability of power of attorney is implied in the document, while others require the document spell out

that the rights are durable.

Durable power of attorney documents can be written to become e ective either upon signing or only when the

principal’s capacity is compromised. For example, a power of attorney for healthcare could go into e ect when

two doctors judge that a principal is incapable of handling his or own healthcare decisions, Fried says. The

document would spell out what incident causes an agent to be granted power.

Until such an incident occurs, principals who create power of attorney documents retain the power to make

decisions on their own behalf, and they can override their appointed agent, Gould says—even if their decisions

are not what others believe are the best decisions.

3. Executorships and Wills

A power of attorney agent’s legal control over a principal’s healthcare and nances ends when the principal dies.

At death, control of a person’s a airs, including his or her medical records, goes to the person the principal named

as the personal representative or executor of their estate. An executor is typically named in a will, another type of

advance directive, which dictates who can manage the deceased’s estate.

A person named in a will as executor must le documents in probate court in order to receive an o cial executor

document. If no executor was named in a will, an individual would seek court approval to be named the

principal’s personal representative.

An executor has no legal authority over a principal while the principal is still living. For example, the executor

would have no right to the principal’s medical records during the principal’s lifetime.

4. Living Will

The living will dictates an individual’s preferred medical choices on end-of-life decisions. It can serve as a guide

for a healthcare agent who must make healthcare decisions on the principal’s behalf.

“It is important to give [agents] guidance, because they are doing substitutive decision making, making a decision

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in your stead,” Fried says. “They need to know what your wishes would be so they can honor them.”

It also is important to name someone who can honor your wishes. Fried had a client with ALS who named a close

friend as her agent because her husband believed it would be too hard for him to honor her wish to forego life

support should she become unable to swallow.

Living wills can stand on their own as a statement dictating what care an individual would like to receive.

However, they do not appoint an agent to make healthcare decisions. Because a living will cannot anticipate

every medical situation that might occur, they are no substitute for a durable power of attorney agent to fully

oversee medical decisions.

Living wills cannot be used to request medical records.

5. Guardianship

The di erence between a power of attorney agent and someone receiving guardianship of a principal is great.

In an advance directive such as a power of attorney, the individual retains control over who handles his or her

a airs. Guardianship, on the other hand, is determined by the courts.

“Guardianship is the most restrictive alternative,” Fried says. “You want to try everything else before you end up in

court.”

A guardian, also called a conservator in some states, is appointed by a court to make decisions about another

person’s care and property if no authorized or capable agent can be identi ed. Guardianship is granted to a

caregiver by a court when it nds that the principal is totally or partially legally incompetent and can no longer

handle his or her own a airs. In dementia cases, legal incompetence refers to the person’s ability to make rational

decisions about his or her care or property.

Guardianship is not necessarily granted over a person’s entire life and a airs. A court may assign limited

guardianship for speci c activities such as healthcare, Gould says.

A hospital could instigate a guardianship proceeding if a patient is incompetent and has no apparent caregiver to

make medical decisions or care for them upon discharge, Fried says.

Guardianship expires when the principal dies, meaning the guardian would no longer have access to their ward’s

medical records. That power would be passed to the executor of the deceased’s estate.

In some instances, both a guardian and a power of attorney agent may exist, such as instances where the agent

was deemed incapable of ful lling the duties for a short time period or was only identi ed at a later date. A full

guardianship trumps any power of attorney documents and their named agents.

6. Default Surrogate Statutes

Some states have passed default substitutive or surrogate decision statutes that establish a hierarchy for naming

a healthcare agent if a person becomes incapacitated and has no advance directives. In Maryland, for example,

the surrogate is rst the guardian (if named), then the spouse, then an adult child of the patient, then a parent of

the patient, then an adult sibling, and so on.

In such states, a person who does not want next of kin to be named his or her proxy in the event of incapacitation

certainly will want to create advance directives, Gould says.

Not all states have default surrogate statutes, leaving court the only option for establishing an agent in the

absence of advance directives.

Common Misconceptions on Rights to Access Records

Having worked 15 years as a director of a hospital HIM department, Becky Buegel has vast experience elding

requests for patient records. Misunderstandings over the rights a particular document conveys are common, says

Buegel, RHIA, CHP, CHC, now the HIM program director at Brookline College based in Phoenix.

For example, someone might present a power of attorney document that pertains to property, not healthcare.

Someone else may present a living will. Neither document authorizes access to another person’s health records.

Other times a person might hold a power of attorney for healthcare that is invalid because the patient has

become incapacitated or has died. Others request records as the guardian of a patient but provide only a petition

for guardianship as proof.

Another misconception, Buegel says, is that power of attorney can be transferred. She once faced a situation in

which a son was the durable power of attorney agent for his father, and his father was the durable power of

attorney agent for his mother. When both the mother and father became incapacitated, the son believed he had

become the agent for his mother through his role as his father’s agent. This was not the case.

“Power of attorney is a contract between two people,” Fried says. It cannot be reassigned.

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Di ering state laws complicate matters. Take for example a man who executes a durable power of attorney for

healthcare in Illinois, his primary residence, but becomes incapacitated in Arizona where he spends his winters.

Di ering state laws could render the Illinois document invalid in Arizona or require additional provisions in order

for it to be honored by an Arizona hospital, Buegel says.

Some advance directives may require supporting documentation. Under Wisconsin law, a durable power of

attorney is e ective only after two physicians or a physician and a psychologist determine the principal can no

longer act on his or her behalf, Buegel says. This medical determination must be stated in a written, signed

document and attached to the power of attorney for the power of attorney to be e ective.

The most important aspect of the advance directive is ensuring a third party, like a hospital or bank, will accept

them. Fried recommends that individuals discuss the advance directive requirements directly with their bank or

hospital before drawing up the documents. With the prevalence of nancial and healthcare fraud, many hospitals

and banks are cautious about accepting loosely documented advance directives.

“There is a lot of concern about fraud, and for good reason,” Fried says. “There is no oversight on power of

attorney, which is why you have to give it to someone you trust.”

For HIM Professionals: Due Diligence Required

HIM professionals have a duty to evaluate each request for a patient’s records. They are professionally and legally

bound to ensure that con dential information is disclosed only to authorized individuals.

To the patient or caregiver, this scrutiny may look like red tape. But it is in all patients’ best interest that their

medical information is kept con dential until requestors can prove they have either consent or the legal right to

access it, says Buegel.

“This is one of the reasons why most hospitals don’t immediately run and fetch a record and copy it for somebody

when they rst walk in,” Buegel says. “We need time to make sure that we have proper authorization and see if

there are any issues that exist.”

These interactions can lead to frustration and con ict. People typically are seeking another’s medical records

during a medical crisis. HIM professionals should handle contentious records request delicately and with

compassion, Buegel says. But they should not hand over information just to avoid a di cult situation.

“Sometimes people felt like they were jumping through hoops, but it really was in the patient’s best interest,”

Buegel says of her former records request process.

Creating appropriate advance directives helps everyone involved. The correct advance directives protect patients

while allowing them to directly dictate who and how others handle their care and nances, says Buegel.

In reviewing an advance directive, HIM sta must ensure the document is valid in their state, e ective on that day,

and grants powers to access records. They must verify the requestor is the active, named agent or executor of the

principal’s estate.

“You had to read every document that someone brought in because I think most times the person who brought it

in hadn’t read it,” Buegel says of her past experiences. “They just knew their name is in it, and they signed it.”

In states with default surrogate statutes, it may be di cult for HIM sta to verify the legal agent based on the state

law alone. In such cases, they should refer to their state law and attempt to contact any known relations higher in

the hierarchy (such as a guardian or a spouse) to con rm the legal substitutive agent.

The Importance of Completing Advance Directives in Advance

Though they are not pleasant to think about, advance directives are important to get in place while a person is

healthy and mentally capable. Waiting until a medical emergency arises might be too late.

Once Marvell Payne was diagnosed with Alzheimer’s, he and his wife not only created a durable power of

attorney for healthcare, but also a durable power of attorney for nances, a living will, and several other advance

directives. Advance directives give he and his wife the assurance that their a airs will be in order if his Alzheimer’s

progresses, Payne s