Caring for Others

For Caregivers and Their Loved Ones: Advance Directive and Other Important Legal Documents

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Are you caring for an elderly or sick family member? We know it can be tough and stressful, especially if you are handling any of your loved one’s financial, medical or legal responsibilities. Prevent future legal issues — and take the time now to make sure the person you’re caring for has these five legal documents in place:

1. Health care power of attorney

What is a health care power of attorney?

Also known as medical power of attorney, a health care power of attorney is a document that designates an individual to make medical decisions on behalf of someone else. This decision-making power is limited to periods of time when that person is unable to make decisions on his or her own.

Why is a health care power of attorney necessary?

Without a designated representative, decision-making authority is determined by state law. This means that treatment and care decisions may be left to groups of people, such as children and siblings, or to individuals with whom the person no longer communicates.

What else do I need to know about a health care power of attorney?

Some states disqualify certain individuals from serving as a health care representative, such as an attending physician. The representative can consult with the patient’s doctor for medical guidance. Also keep in mind that the health care power of attorney document only applies when someone is unable to make his or her own decisions. When able, the patient can amend or revoke the power of attorney.

2. HIPAA representative

What is a HIPAA representative?

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that helps protect the privacy of patients. Doctors, hospitals and insurance companies are required to follow HIPAA rules. This means they can only share medical information with the patient or the patient’s personal representative, as dictated by this document.

Why is a HIPAA representative necessary?

Without this document, caregivers may find themselves without access to their loved one’s medical and insurance information. This is especially true if the caregiver doesn’t have a family relationship to the patient.

What else do I need to know about a HIPAA representative?

A health care power of attorney is considered a HIPAA authorization, but it’s limited to the periods of time when the patient is unable to make and communicate health care decisions. A separate HIPAA authorization ensures access during other situations when the patient is still conscious but still might want you to have access to their information.

3. Living will

What is a living will?

A living will (also known as an advance directive) details someone’s wishes regarding end-of-life care. This document goes into effect in terminal situations when a patient is in an end-of-life situation or permanently unconscious, and incapable of making his or her own decisions.

Why is a living will necessary?

Without a written directive, life-sustaining treatment will continue when the patient can’t make decisions for him — or herself — even if the procedures go against what you believe are the patient’s wishes.

What else do I need to know about living wills?

Each state has its own laws regarding living wills. State laws may allow living wills to include directions on artificially provided food or hydration, pain medication, consent to an autopsy, organ donation and disposition of bodily remains.

4. Durable power of attorney

What is a durable power of attorney?

A durable power of attorney names an individual to manage someone’s affairs beyond just medical care. This document allows access to financial accounts and gives the named person decision-making authority.

Why is a durable power of attorney necessary?

Caregivers may need to manage the patient’s finances. Common needs include access to bank accounts to pay bills, care for children and manage the patient’s household.

What else do I need to know about a durable power of attorney?

There are limits to the authority of this power. This individual cannot change the patient’s will, various types of trusts or designated beneficiaries of life insurance policies and other assets.

5. Last will and testament

What is a last will and testament?

A last will and testament (generally just called a “will” but not to be confused with a living will) is a document that outlines final directions for who will receive a person’s assets, real estate and personal property when he or she dies. The will also identifies a person (executor) to carry out these orders and a person (guardian) to care for any children under the age of 18.

Why is a last will and testament necessary?

Without a will, state courts will determine what happens to that person’s assets, possessions and children. This is why creating a will is so important — for everyone.

What else do I need to know about last wills and testaments?

A will can be changed and updated as someone’s life changes. As children grow or health improves, the will can either be revised (with an addition called a codicil) or a new will can be created to reflect new situations.

Consider working with an attorney

You may find legal forms — like a last will and testament form or a living will form — online. However, these standard documents don’t take into consideration special situations that may exist with your loved one. That’s why it’s generally a good idea to consult with an attorney who can help you complete the right legal documents for your loved one’s needs.

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