Advance Directives And Powers Of Attorney

It’s hard to watch a parent age and develop physical infirmities or dementia. Even normal aging may cause an elderly person not to be able to handle their affairs with the poise they used to have. It’s also hard to watch your young adult or loved one struggle with a mental health condition. While you may want desperately to help them, medical providers may be unwilling to speak with you and hospitals may not tell you whether your loved one has been admitted or not due to Health Insurance Portability and Accountability Act (HIPAA) constraints.

Enter the medical advance directive, psychiatric advance directive (PAD), power of attorney (POA) and appointment of a health care agent (HCA). These are all instruments of law under which a person may give instructions as to their preferences for treatment and/or appoint an agent who can make decisions for them should they become incapacitated.

Under Maryland law, a medical advance directive, also known as a living will, allows “any competent individual (to) make a written or electronic advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual.” To become effective, two physicians must certify that the “patient is incapable of making an informed decision.”

People often use this document to state their preferences for nursing-home care, life-saving measures, end-of-life decisions, and after-death donations of organs. The law also allows a person to appoint “an agent to make health care decisions for the individual under the circumstances stated in the advance directive.” The agent may serve as the point of contact and decision maker for health care providers and serve as personal representative for HIPAA purposes. Two witnesses must sign the advance directive, and neither may be the person appointed as the health care agent.

Maryland law also provides specifically for psychiatric advance directives, stating, “An individual who is competent may make an advance directive to outline the mental health services which may be provided to the individual if the individual becomes incompetent and has a need for mental health services either during, or as a result of, the incompetency.”

“‘Mental health services’ means health care rendered to a recipient primarily in connection with the diagnosis, evaluation, treatment, case management, or rehabilitation of any mental disorder.”

Importantly, not only does the law provide for the “designation of an agent,” but it also allows the individual to clarify his or her preferences for treatment in advance of a crisis. In their PAD, the individual may identify preferred mental health professionals, programs and facilities for services, as well as preferred medications for psychiatric treatment. The declarant may instruct providers to notify a third party and to release information to third parties about mental health services provided to the declarant.

A power of attorney may be useful in a number of situations, from estate planning to managing your personal property or real estate. The agent can act in accord with whatever powers are granted by the grantor in the POA, such as investing or disbursing money, entering into contracts, preparing and filing records, communicating on behalf of the grantor, operating a business, etc.

Advance directives and powers of attorney may be useful in many circumstances. If you or a loved one would like to plan for the future and avoid crisis situations, you should consult with an attorney who can tailor these documents to your circumstances and is able to address the complex issues involved.

If you need further information regarding this subject, contact the Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 302, in Millersville, by calling 410-244-1189, or by emailing david@diggslaw.com.