Advance Directives In Illinois: The Health Care Power of Attorney

Advance directives – something about which only estate planning attorneys need to know, right? Not so. 

“Advance directives” are written statements in which individuals direct how they want medical decisions to be made if they are no longer able to make them on their own. As an active physician, you will probably encounter at least some of these documents in your practice.  They may affect how you are able to treat a patient, or whether a third party (such as a family member) has the authority to make treatment decisions about your patient’s care, so it’s important to know about them. 

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Illinois allows for four types of advance directives:

• Health care power of attorney – a document that allows a person to designate an agent to make health care decisions for that person if the person is unable or no longer able to do so (most commonly encountered by a chiropractic physician);
• Living will – a document that tells a person’s health care professional whether to use death-delaying procedures if the person has a terminal condition and is unable to state his or her wishes;
• Mental health treatment preference declaration – a document that allows a person to state whether he or she wants to receive electroconvulsive treatment or psychotropic medicine when the person has a mental illness and is unable to make those decisions for himself or herself; and
• Do-Not-Resuscitate (DNR/Practitioner Orders for Life-Sustaining Treatment or “POLST”) that states that cardiopulmonary resuscitation (CPR) will not be used if the patient’s heart or breathing stops.

Of these four documents, you are most likely to be presented with a health care power of attorney by someone (often a spouse or child of an older patient or disabled person) asserting his or her right to make health care decisions about one of your patients.

In recent years, the Illinois legislature has made a series of changes to the law regarding the health care power of attorney, to better protect patients, their agents (decision makers), and third parties. The law now also incorporates HIPAA requirements regarding a patient’s right to access to medical records.  This article will review the general functions of the health care power of attorney, as well as some of the details that may affect chiropractic physicians under the current law.

General Principles of the Health Care Power of Attorney

A health care power of attorney permits a person, called the “principal,” (your patient) to designate an “agent” to make health care decisions if the principal is no longer able to do so.  The principal is permitted to give the agent specific directions about health care to be provided or withheld.

According to the law, each health care provider has the following duties with regard to a health care power of attorney:

• The agent or patient is responsible to let the health care provider know about the health care power of attorney and should give a copy to the provider, who must make it a part of the patient’s medical record. Whenever a provider believes a patient may lack capacity to give informed consent to health care the provider deems necessary, the provider should consult with any known health care agent to get consent for care.
• A health care decision made by an agent must be followed by every health care provider to whom the decision is communicated, subject to the provider’s right to keep the patient comfortable or alleviate pain; but if the provider is unwilling to comply with the agent’s decision, the provider must promptly notify the agent who is then responsible to make the necessary arrangements for the transfer of the patient to another provider.
• Each health care provider must give an agent the same right the patient (principal) has to examine and copy any part or all of the patient’s medical records, according to the patient’s HIPAA right of access.

What if the Patient Is Unable To Make Decisions And There Is No Health Care Power Of Attorney?

If a physician believes that a patient is incapable of making his/her own care decisions and the patient file does not contain a health care power of attorney, the ICS recommends that the physician contact a family member to ask if such a document exists.  If not, the ICS recommends that the physician take steps to terminate the patient, following all protocols to avoid patient abandonment.  A patient must be competent to create a valid power of attorney.  When a patient is no longer competent to appoint an agent for health care, a physician cannot obtain consent to treat and the family is responsible to take legal steps to establish their right to make the patient’s decisions.  As always, the physician should document the patient’s record very carefully in these situations.

New Law And Statutory Form For Health Care Power Of Attorney

A physician cannot serve as the agent for a patient under his or her care. In other words, the physician cannot be appointed as the person to make care and treatment decisions for the patient.  To avoid conflicts of interest, the new Act now also prohibits attending physicians from acting as witnesses to their patients’ signing of a power of attorney.

The legislature has attempted to simplify the process by providing standardized forms that can be tailored to the wishes of each person. The standard form is referred to as a “statutory short form” (which some would claim is a gross misnomer), sometimes abbreviated as “SSF,” for health care power of attorney. The law includes the complete standard form, which has been re-formatted into subsections for specific powers, such as access to medical records. [For the current statutory form, click here]

The form begins with multiple pages of information, many in question-and-answer format, addressed to the person signing it.  The actual form portion is comprised only of the two pages at the end.  The first paragraph of the statutory short form states that the principal is revoking all prior powers of attorney for health-care previously executed by the principal, so the most recent power of attorney is generally the valid one, where more than one form exists.

However, individuals are not required to use the standard form, so patients may present you with a health care power of attorney that does not look like the statutory form.  Patients may write their own Power of Attorney for Health Care, provided it:

• names the person who will serve as the agent;
• describes the power granted to the agent; and
• is signed and dated while the patient still able to make decisions for herself/himself.

Of course, the document must be properly signed, dated, and witnessed.  If these elements are met, these documents are as legally binding as the standard form and should be honored.

Unless the document limits the agent’s powers, the agent possesses the same authority that the principal (patient) would have to consent to or refuse treatment.  In a chiropractic physician office, this would include your treatment plan, as well as consent to your fees.  The agent’s giving of consent makes the principal or his or her estate legally responsible for payment.

 Note that the law does not allow simultaneous co-agents for health care. As a physician, you should question persons who present themselves to you as “co-agents” of a patient, because only one may serve at a time (although a principal may name a successor agent to serve after the first agent resigns). For example, be wary if two children of an elderly patient each present you with a health care power of attorney, claiming that they are both agents, especially if they disagree as to the parent’s care. 

HIPAA Considerations In The New Health Care Power Of Attorney

Under HIPAA rules, a “personal representative” may obtain protected health information for a patient. For HIPAA purposes, the agent under a health care power of attorney has the right to serve as the principal’s “personal representative.” This gives the agent access to the principal’s health information as soon as the principal signs the healthcare power of attorney. The agent is entitled to the same access and information to which the principal (patient) would be entitled.  Another HIPAA-based change is the statement that a healthcare power of attorney supersedes any prior document your patient may have signed with your practice regarding disclosure of medical information. Therefore, this form will replace any form your patient may have signed in your office regarding restriction of or access to his or her individually identifiable health information.

The agent’s HIPAA authority expires only if the principal revokes the authority in writing and delivers it to the principal’s healthcare provider. Therefore, a physician need only honor a subsequent health care power of attorney if it is in writing and revokes the prior one.

Conclusion

The Power of Attorney Act is intended to provide each person with the right to name an agent to make personal decisions in the event the person is incapacitated. As a physician, you can and should comply with these instruments. The law is designed to encourage you to honor your patients’ wishes regarding the person they want to make medical decisions on their behalf, while simultaneously safeguarding you from liability for honoring those wishes.