3 Must-Have Legal Documents for Elderly Healthcare

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Many people consider information and decisions about their health to be highly sensitive, deserving of the strongest protection under the law. Therefore, when it comes to your parent's healthcare, the law is very strict about who is able to participate in healthcare-related conversations and decisions.

However, many people never think about their views and values regarding end-of-life decisions until a crisis hits – the time when decision-making is most difficult. Not planning in advance means that you might not be able to gain access to the information you need, or act on your parent's behalf if they are unable to do so. In a worst-case scenario, you might be forced to fight in court for guardianship, a time-consuming and costly process. You can avoid this scenario by working with your parent to prepare these documents.

HIPAA Authorization

The Health Information Portability and Accountability Act (HIPAA) keeps a person's health information and records private. Unless your parent authorizes in writing someone else to receive that information, it is illegal for doctors to share any details with you about your parent's health. HIPAA authorization is a simple document that authorizes the doctor to share necessary information with you on your elderly parent's behalf. It's very short and only takes a moment to complete. The doctor's office will have the blank form you need.

Health Care Proxy

Also known as a medical power of attorney, a health care proxy is a legal document that enables you to make health care decisions for your elderly parent in the event they are unable to make those decisions themselves. This document must be prepared while your parent is still mentally competent to do so.

The designated person has the power to make all health care decisions for your elderly parent. However, to avoid the difficulties associated with making joint decisions, only one person can be given authority to act on your parent's behalf. For example, two siblings cannot both be named as a health care proxy—it must be only one person. An alternate person may be designated at the time the document is prepared in the event the first person is unable or unwilling to serve.

It is crucial that the person who is named health care proxy know what the elderly parent's wishes are in the event that they need life support, a feeding tube or intravenous fluids to survive. This is why the patient's living will, known as an advance care directive, is a very important document for family caregivers to have.

Advance Health Care Directive

This is commonly known as a living will. An Advance Health Care Directive lets people make their own end-of-life care decisions before a medical crisis strikes, even if they are unable to communicate their own wishes. With a living will, the caregiver and other loved ones don't have to agonize over difficult medical decisions. A living will should spell out:

  • Whether the person wants to be resuscitated if he or she stops breathing
  • Whether artificial life support should be used
  • Whether a feeding tube should be inserted

A living will may indicate care or treatment the person does or does not want performed under specific circumstances.

Plan Ahead

Once a healthcare emergency strikes, it will probably be too late to prepare these documents, so talk to your parent about getting their affairs in order and spell out their wishes regarding healthcare while they are still healthy.

Consult an attorney specializing in elder law who will prepare these items and can provide advice on additional planning tools, depending on your family's circumstances.

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32 Comments

Terrific information.

Another item to consider doing is "Declaration of guardian in the event of later incompetence or need of guardian" as well as a DURABLE POA (not just a POA)

I would like to add that it is important that the documents clearly show the notary seal or impression; sign all documents in blue ink and have 3 multiple original copies made (1 stays with the attorney, 1 for the main person responsible for oversight & 1 for the first alternate); that they be drawn up properly by an attorney who is familiar with elder law in the state where the person resides. Just pulling a form off the internet is NOT the thing to do.

If you cannot afford an elder care attorney (these forms are routine, it really isn't that expensive and if there is an issue later on you have an attorney familiar with your family), you might want to contact a law school to find out when the law students do their pro-bono clinics to have these drawn up and notarized.

Also many long term care facilities/NH require that the resident have Advance Directives with DNR (do not resusitate) choice on file within 30 days of admission.
So if you haven't discussed this already, you will have to do so then and that is much more stressful. Ditto for funeral information - many LTC require this information be on file - again if you haven't discussed this already, you will have to do so then and that is much more stressful.
N1 - Your comments reinforce why it is so very, very important to have the discussion of death in advance. The visual of a family member going peacefully with loving family in their home amidst their beloved home is not reality for most of us and our elderly parents.

Advance directives are important to discuss and do - many LTC/NH require that one be on file within 30 days of the residents admissions.If you are admitted into the hospital for many procedures you will need to have one done. You don't want to have to do this as your loved one is being wheeled off to anthesthia, or your standing under the bad lighting of the ER signing off a stack of papers.

An AD can be changed but it really needs to be discussed & done.Personally I also think you should discuss what hospice is too.
In California I was unable to place my wife in licensed memory daycare without a power of attorney. This is a critical document and needs to be secured before the patient is too ill to complete a legal POA. The alternative is an expensive trip to court to secure a conservatorship.