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FYI: Durable Powers of Attorney for Health Care aren't just for old people anymore

This is not really an opinion post on a highly controversial matter. (I know, wonders will never cease.) But it is an FYI that I think my readers will be especially interested in. Apparently some health care providers are interpreting HIPAA to mean that even parents cannot have information--and therefore will not be able to make informed decisions--about the care of their young adult children who have been injured.

The irony here is that this will mean that the medical facility will simply be free to make whatever decisions it wants about the patient's care without the input of any family member. And the people in the medical facility have no special knowledge of the patient's wishes. This is protection of privacy? I'm not even alleging some sort of deliberate scheme. I think it may be an accident of bureaucracy together with extra-hyper legal worries. But it's bad, either way. According to this piece by Rita Marker (also linked above), even spouses can be cut out of the decision-making process.

The way to insure that this doesn't happen is to sign a Durable Power of Attorney for Health Care, designating someone to make your decisions when you can't do so yourself, and preferably also a backup in case the first person can't be reached. Suggest to your children eighteen or older that they do so as well. A DPA document does not have to contain any details about treatment preferences. It is not a living will. Some DPA forms have a blank space where the person can indicate his treatment preferences, but it's actually more important to have a substitute decision-maker you trust than to try to spell out every possible hypothetical scenario.

Comments (7)

Well, HIPAA is, like almost every other federal health law, a many-headed monster that leaves a wide path of destruction in the wake of whatever good it might do. But I don't see anything in that article about it being applied to minor children: the author correctly notes that the law (stupidly) precludes parents from receiving unauthorized access to information about their adult children.

As a doctor or hospital administrator, attempting to use HIPAA as an excuse to cut out the custodial parent of a minor would be a one-way ticket to a medical-battery judgment. The general rule is that minors are not competent to consent to medical treatment (thus the massively vile irony of the abortions and b.c. for kiddies regimens), so a medical provider lacks authorization to do anything to a child without his parent's consent (some emergency situations excepted). Health-care law may be twisted, but it hasn't quite gotten that twisted yet.

P.S. - Since when are durable powers of attorney (as opposed to advance directives---which are different---instructing a doctor to kill you) controversial? It's a highly useful and important instrument.

Yes, I said "young adult children." I meant 18 or older. I think it never occurs to parents that that eighteenth birthday can mean that suddenly if your college student child is knocked unconscious in a sports injury, you may not be allowed even to know about his medical condition much less to make decisions. You have to admit it's a pretty surprising situation, and I don't believe it was at all the norm even ten years ago.

I don't know that DPA's for health care are controversial. I think that probably most people find the idea a little wearying and cumbersome to think about doing and might figure it isn't necessary, especially for someone quite young like a college student. Also, there is the question of whether or not to hire a lawyer. Fortunately the DPA document is usually quite short and can be found on the Web for most states, so with a little research, one can be pretty confident that one is "doing it right" and can just have the patient's signature notarized and double-witnessed at, for example, a local bank.

I see now that my use of the term "controversial" in the first sentence might have been misleading. I meant that I was _not_ (for once) writing about a highly controversial matter.

HIPAA also causes problems for hospital ministry. I believe you must expressly say whether you would like for a church or minister to be notified in the event of serious illness.

I remember seeing a note about this in my parish bulletin about the time it took effect, but I don't have more details available offhand.

Interesting, Kevin. I wonder if your legally designated patient advocate would be able to request and consent to a visit from a pastor on your behalf if you were incapacitated. One would assume so, as this would be a power that the patient himself would normally have.

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