Health Care Power of Attorney and Living Will

With all the privacy restrictions on medical information that have been imposed as a result of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), people are confused. Although the privacy restrictions are important so that private medical information is not inadvertently disclosed, the restrictions can be burdensome when a loved one is trying to assist you with our medical care. It was always important to have a valid Health Care Power of Attorney and Living Will Declaration, but now it is even more necessary because of HIPAA and because of recent changes in Ohio law. What are these documents and why are they important?

A Health Care Power of Attorney is a written document signed by you which authorizes an attorney-in-fact named by you to make all of your health care decisions when your attending physician determines that you are incapacitated so as to be unable to make health care decisions for yourself. This includes the ability to obtain access to your medical records which would otherwise be blocked by HIPAA. An optional provision of the Health Care Power of Attorney allows you to authorize the attorney-in-fact to refuse or withdraw nutrition and hydration if you should be in a terminal condition or a permanently unconscious state.

Living Wills Declarations are used to express your wishes regarding your health care (especially the refusal or withdrawal of nutrition and hydration), if you should be in a terminal condition or a permanently unconscious state. An optional provision in the Declaration allows your to state whether you wish the refusal or withdrawal of nutrition and hydration and institution of a "do not resuscitate" order if you are in a permanently unconscious state. This document is effective only when you are incapacitated, and only if two physicians agree that you are actually terminal or permanently unconscious. Plus, the physicians are required to notify and obtain permission to withdraw or withhold nutrition and hydration from the individuals you wish to be notified in such event.

Additionally, a mandatory provision of the Ohio Living Will Declaration allows you to consent to or to withhold consent to an anatomical gift upon death. Part of the new language included in the Living Will form is: "In the hope that I, __________ (name of donor), may help others upon my death, I hereby give the following body parts: ___________ (indicate specific parts or all body parts) for any purpose authorized by law: transplantation, therapy, research or education. [Cross out any purpose that is unacceptable to you.]" If you would like to donate organs upon your death, you need to sign a new Living Will Declaration. Additionally, there is a Donor Registry Enrollment Form that must be completed and sent in to the Ohio Bureau of Motor Vehicles.

As with any estate planning document, the Health Care Power of Attorney and Living Will Declaration should be reviewed on a routine basis to make sure they still reflect your wishes. See an Estate Planning professional for more information.