Understanding Health Care Power of Attorney

As the U.S. population ages, it is increasingly important for providers to understand the legal parameters and rights related to health care power of attorney. Providers need to know how to respond when care decisions or requests are being made by a person acting on a patient’s behalf—from medical record requests to end-of-life treatments.

What Is a Health Care Power of Attorney?

A health care power of attorney is a document that authorizes someone (known as an “agent”) to act on behalf of a patient (often referred to as a “principal”) to direct health care decisions or treatment when the patient is incapacitated or otherwise unable to make those decisions on their own. It provides direction about the kinds of medical treatment a patient wants and may contain provisions relating to the rights, powers, duties, and responsibilities of the agent. The health care power of attorney becomes effective when it is determined that a patient lacks sufficient understanding or capacity to make or communicate about his or her own health care decisions.

There are some state-by-state differences related to the creation and authorization of these documents, including what is required to institute the authority and how and when the rights of an agent can be revoked. Most of this responsibility falls to the principal and the agent, but health care providers should also be familiar with these differences, as governed by state law. The related codes from some of Medical Mutual’s core states are listed below:

• Delaware: Code § 16-2501 et seq.
• Georgia: Code § 31-36A-1, et seq.
• Maryland: Code § 5-601, et seq.
• North Carolina:C. Code § 32A Article 3, et seq.
• Pennsylvania: Code § 20-5421, et seq.
• South Carolina: C. Code § 62-5-500, et. seq.
• Virginia: Code § 54.1-2981, et. seq.

If providers identify patients who could benefit from a health care power of attorney, Medical Mutual’s Risk Management team recommends encouraging those patients to establish one to avoid any ambiguity in their future care.

Health Care Power of Attorney vs. Durable Power of Attorney

A financial or general durable power of attorney authorizes someone (an “agent”) to act on behalf of a person (“principal”) in financial or property-related matters once the principal is incapacitated. A financial power of attorney does not generally have the authority to make health care decisions for the principal. However, some states allow health care preferences to be incorporated into a general power of attorney. Health care providers should review the document closely to confirm if health care directives are included.

When Does Health Care Power of Attorney Go into Effect?

A person designated as an agent in a health care power of attorney often does not gain the power to make care decisions until the patient becomes incompetent. Once the patient is mentally or physically unable to make decisions for him- or herself, the agent specified in the health care power of attorney may take over and give consent on health care decisions. The health care power of attorney is also generally revoked when a patient dies.

What Duties Do Providers Have?

First and foremost, if patients are still deemed competent, they can make decisions for themselves, and the health care power of attorney generally is not in effect. When presented with a health care power of attorney for a patient that has been determined incompetent, practices should review the document to determine any restrictions on the agent’s authority.

It’s also important for providers to ask for photo identification to verify the person presenting the document and claiming to be the agent. As a best practice, providers should retain a copy of the health care power of attorney document in the patient’s medical record and keep a copy of the identification presented.

Once a patient is incapacitated, the provider should follow the directives of the principal’s agent to the extent they are consistent with the desires of the principal (as provided in an advanced directive or living will), the law, and the health care power of attorney. If the principal’s provider decides not to follow an agent’s decision, the provider must inform the agent as soon as reasonably possible and document the decision in the patient’s medical record.

Most states have specific procedures that must be followed when a provider refuses to honor an agent’s decision, including medical record documentation and a process for transitioning the patient to another care provider. Physicians and practice leaders should be familiar with these procedures. More information can be found in the state code links provided above.

What Protections Does My State Offer Providers?

In many states, a health care provider or facility will not be subject to criminal prosecution, civil liability, or professional discipline for actions taken in good faith relying on the decision of the health care attorney-in-fact or an advanced directive. More detailed information on these protections can be found in the state code links provided above.

What to Do with Medical Records for Patients Who Die Without a Power of Attorney?

It is relatively common for a patient to die without a durable health care power of attorney or an administrator of the estate. In such cases, the records may go to the closest living relative. If there is a surviving spouse, then that person may receive records. If there is no spouse, then records may be released to the closest living relative, in the following order: adult children, parents, siblings, and then any other living relative in descending order of relationship.

In all instances, the requestor should fill out a release form and show identification before records of a deceased person are released. The requestor should also provide evidence of the relationship to the patient (e.g., marriage certificate, birth certificate). Copies of all of this information should be kept with the patient’s medical record.

For more information or guidance on this issue, Curi members can contact our Risk Management team at 800-328-5532.