Senior Legal Line - April 2010

Dear Senior Legal Line,

If I become sick or incapacitated, how can I ensure that my wishes about medical procedures and measures are followed? Are there any legal steps that I can take?

—Bonnie

Dear Bonnie,

As of Aug. 1, 1998, the Minnesota legislature created a new tool to ensure that your health care wishes are followed. The health care directive was created, which incorporated the good things about living wills and durable powers of attorney for health care into one document. Please note: any living wills and durable powers of attorney for health care that were signed before that date are still effective. However, after that date, the recognized and recommended form to use is the health care directive. The health care directive (HCD) allows you to select health care agents as well as write instructions about your wishes to your agents and health care providers. You do not have to do both, although it is recommended that you do. In other words, if you do not want to nominate a health care agent, you can just fill out the instructions or visa versa.

In the first part of the document, the principle (the person filling out and signing the document) can name one or more health care agents. A health care agent is a person that you want to advocate your wishes to your doctors and other health care providers. The health care agent only acts when your doctor determines that you cannot understand the risks and benefits of proposed medical treatment and/or determines that you cannot communicate your wishes. Prior to this “trigger,” your doctors will always come to you and ask you what you want to do in regards to your treatment. A health care agent has no duty to act, so it is important that you contact your chosen health care agent prior to naming him/her in order to make sure he/she is willing to accept the assignment. If that person is willing to act, then he/she assumes powers and responsibilities as your health care agent, including a duty to act in good faith on your behalf and to act as your voice concerning your health care matters. They also have the ability, if there is an additional HIPAA (Health Insurance Portability and Accountability Act) release signed, to obtain your medical records and disclose those medical records to others. Your agent will have all the powers that you give to them. For example, you can give them the power to decide where you live if your health would benefit from the new abode. Your can also limit the powers of your health care agent; if there is a power that you do not want the agent to have, you can specifically state so on the document. The HCD is your document and it should reflect your wishes, both about the powers you are granting the agent and about what kind of care you want in different circumstances. For your health care needs, your health care agent is duty-bound to act on your behalf according to your instructions; or absent instructions or knowledge of your wishes, according to your best interests.

The second part of the document concerns health care instructions. These are specific instructions to your agent and health care providers about your wishes. The instructions can vary from being very specific about your thoughts about certain medical treatments and/or equipment to more general statements of your views on your quality of life and what kind of care you want in certain circumstances. You can also describe what you want done with your body after you die, and whether or not you wish to donate organs and tissue.

It is important for your treating doctors to be able to refer to the document. If a medical provider is not aware of the existence of such a document, it is hard for it to have any effect. Usually, you can file the HCD with your regular doctor and your local hospitals. Of course, your health care agent should have a copy as well.

April 16 is National Health Care Decisions Day. There were many presentations nationwide about health care directives. If you missed such presentations in your area, feel free to call legal aid and request the health care directive. It would be wise to also talk with one of our Senior Citizens’ Law Program attorneys to see if there are other planning documents that might be helpful in your situation.

Other forms to consider are:

• The Minnesota Consent Form to Release Health Information. It will allow health information and records to be released to named persons of your choice, with varying degrees of specificity of the information to be released, depending on how you fill out the form.

• If you have a serious health condition, another form you may want is a Provider Order for Life Sustaining Treatment (POLST). The POLST is an order, signed by a doctor or other qualified medical personnel, based on your wishes. It lays out what kind or degree of life sustaining treatment you want, or do not want. This form has the advantage over the HCD because as a medical order it should be followed by emergency response personnel. The POLST is recommended for individuals facing serious illness or in hospice.

I hope this has been helpful and after you filled out and signed the health care directive, you can rest easier knowing that the likelihood that your wishes will be honored is higher, now that you have formalized your wishes.