Your Duties as a Health Care Agent

One difficulty that health care providers have in establishing who has surrogate decision-making capacity for another in context of health care environment is that there are many types of documents that can designate a health care agent.  In addition, in Pennsylvania, if an individual is incompetent and does not have a designated agent available to act as an agent, there is the possibility of a health care representative to be able to serve as a surrogate decision maker for that individual.

This handout assumes that you have been appointed in a document and are serving as a designated health care agent (either in primary or successor capacity). Generally, estate planning documents include three (3) distinct documents that relate to health care agent surrogacy: 

• Health Care Power of Attorney

• Advance Directive/Living Will

• HIPAA Authorization
  

What is the difference between a Living Will and a Health Care Power of Attorney?

A Living Will, also known as an Advance Directive, is a very important document that sets forth your end-of-life instructions should you be in an end-stage medical condition (formerly referred to as “terminally ill”) or a state of permanent unconsciousness. 

Both terms are defined under Pennsylvania law as follows:

• End-stage Medical Condition: “An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment.”

• Permanent Unconsciousness: “A medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, an irreversible vegetative state or irreversible coma.”
  

Many individuals are reluctant to execute a Living Will with the misunderstanding that the mere execution of a Living Will is treated as the equivalent of a Do Not Resuscitate Order, or a DNR.  A DNR is an order in a medical chart that indicates that the treating physician and the patient or representative have discussed and agreed that no CPR is to be provided if the patient stops breathing, etc.  The existence of a Living Will is NOT the equivalent of a DNR. However, it is important that the agent named as the Health Care Agent be comfortable serving in a position of advocacy to ensure that the principal’s wishes are carried out at end of life.

Our firm prepares a Health Care Power of Attorney and a Living Will so that there these two (2) distinct documents are attached.  The Health Care Power of Attorney is the legal document which is where you will find that you have been appointed as an agent (either in primary or successor position).   In some cases, a principal may name more than one (1) person and if this is so with your designation, you should review whether you must consult and work to achieve a unanimous decision with a co-agent as to any health care decisions or may either agent act alone? If the document indicates either may act alone, it is typical that there is intense collaboration between the agents to be most effective on behalf of the principal. The Living Will (also known as an Advance Directive) will set forth preferences for medical care when an individual is either “End Stage Medical Condition” or “Permanently Unconscious”.

Does the Principal need both a Living Will and a Health Care Power of Attorney?

Yes, both documents are needed in that the Living Will and Health Care Power of Attorney work hand-in-hand: the Health Care Power of Attorney designates Agent(s) and gives agent(s) power to act on principal’s behalf to make health care decisions and the Living Will provides guidance or instructions for the most difficult end of life decisions. 

What is a HIPAA authorization?

A HIPAA Authorization allows all the individuals designated on the Health Care Power of Attorney to access confidential medical information under HIPAA immediately even though the agent authority may only apply to a primary agent at that time.

When a Principal signs a HIPAA Authorization, this general authorization takes the place of the separate HIPAA’s that are needed by each health care provider.  Our feeling is that our clients are better served by allowing their trusted family and friends to have protected medical information about your health care treatment knowing that each possible agent may be needed at an unexpected time.