No Legal Documents? Doctors May Not Discuss Elder Health

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. The 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 is living in an assisted living facility or nursing home. Here's an overview of the two typical documents:

Medical or health care power of attorney

The parent appoints 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, lawyers also will include a HIPAA (Health Insurance Portability and Accountability Act) waiver or release that ensures you are not breaking the federal law that protects a patient's health care privacy, says Diana Anderson, a certified elder law attorney and partner with Carluccio, Leone, Dimon, Doyle & Sacks in Toms River, N.J.

Advance medical or health care directive

The advance medical or health care directive often combines the power of attorney and living will, which allows the parent to specify their wishes and appoint who will act on their behalf.

A component of the advance medical or health care directive also should 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 those documents?

If your parents did not create one of 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 do not have a legal document appointing a legal guardian or "agent" to act for them. The laws allow for a 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.

If there is no healthcare power of attorney or healthcare proxy, the laws allow family members to talk to doctors and make decisions about a parent's care, if the parent is in a nursing home, hospice or hospitalized, says Ronald Fatoullah, a certified elder law attorney and founder and managing attorney of Ronald Fatoullah & Associates in New York.

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 going to pretty much listen 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 until your parent is in an assisted living facility or nursing home, but it's good to know what you could expect.

As health conditions worsen, doctors are more likely to require documentation before any end-of-life decisions are made. Anderson has seen nursing homes allow an adult child to have the person's chart marked DNR/DNH (do not resuscitate/do not hospitalize) without any paperwork, but then not enforce that.

If a physician at a facility thinks the patient should receive additional treatment, and the children disagree, then suddenly the lack of documents becomes a problem, Anderson says.

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