Even if you were heavily involved in the decision to place an elderly loved one in a senior housing facility, patient confidentiality can keep concerned family members from being able to discuss their loved ones' medical conditions with physicians at assisted living facilities and nursing homes.
To make sure you can participate in conversations with health care providers about treatment, medications and even life-or-death decisions, certain legal documents need to be in place. These documents also will allow you to access your parent's medical records.
The type of document needed varies, depending on the state where your family member resides. In many cases, a family caregiver has been involved in care before a senior living placement is made, so these documents have already been legally executed. Typically facilities require the following documents:
Medical or Health Care Power of Attorney
A Medical POA allows the parent to appoint a child, another family member, close friend, attorney or someone else to make health care decisions for them when they cannot. The document also may be referred to as the health care proxy or surrogate.
When creating health care power of attorney, also include a HIPAA (Health Insurance Portability and Accountability Act) waiver or release that ensures you can share information with health care agencies without breaking the federal law that protects a patient's health care privacy.
Advance Medical or Health Care Directive
The advance medical or health care directive often combines the power of attorney with a living will. Health care directives allow the parent to specify their wishes when it comes to critical care and end-of life treatment decisions in order to guide whomever will act on their behalf.
Note that a component of the advance medical or health care directive should also include HIPAA authorization, to ensure that you are not violating the HIPAA act in discussing your parent's condition with their physician. If the advance medical directive was created before HIPAA was created in 2001, it is not HIPAA-complaint and needs to be updated.
What happens if you don't have these documents?
If your parents did not create these documents, you need to see if your state has passed a healthcare decisions act (we've also seen them in states such as Alaska, Maryland, New York, Virginia, West Virginia and Tennessee).
The healthcare decisions act applies in situations where a patient cannot make their own medical decisions and does not have a legal document appointing a legal guardian or "agent" to act for them. The act sets forth a progression of authority. The individual while having legal capacity is first and foremost the health care decision maker. If not the individual, then the individual's appointed agent; if no validly appointed agent, then a court appointed guardian; or, if all else fails, a surrogate.
The laws allow for a surrogate to be identified as followed: spouse or domestic partner to legally make decisions, followed by an adult child if there is no spouse or domestic partner. Adult siblings and close friends (the acts have legal definitions for who is a close friend) are last on the list.
Some doctors in assisted living facilities and nursing homes may be willing to discuss conditions with family members who were unable to get the documents in place before their parent's condition worsened.
"It's probably a crapshoot based on the doctor and whether or not they really hold onto or follow those rules," Anderson says. "A lot of times if you're the only person that is sort of stepping up and trying to care for mom, they're probably going to speak to you."
Another factor is whether the doctor knew the patient's child previous to them being in an assisted living facility or nursing home. If a child has been with the parent at several appointments over a period of time, Anderson says the doctor usually makes a transition between talking to mom or dad with the child present to talking to the child with mom present to talking with just the child.
Overall, it depends on the situation and the way the facility operates. You may not know how it will be handled until your parent is actually in an assisted living facility or nursing home, but it's good to know what you could expect.
If a physician at a facility thinks the patient should receive additional treatment, and family members disagree then suddenly the lack of documents becomes a problem. Additionally, as health conditions worsen, doctors are more likely to require documentation before any end-of-life decisions are made. It's best to ensure health care designations are made well in advance of the need.