Do you know who will make healthcare decisions for you during a crisis? More importantly, will the hospital listen to them? Without the right legal documents, they may not. And with the current climate in North Carolina post Amendment One, no medical personnel are going to listen to a partner without the right documents in place.
I get a lot of questions about healthcare decisions, especially from unmarried partners; however, even spouses who take their marital rights for granted may have problems, and most people don’t realize this. Because this is such an important issue, I want to take a minute and explain it.
In 1996, Congress passed a well-intentioned but overly broad piece of legislation called the Health Insurance Portability and Accountability Act that was meant to put a stop to an emerging practice of medical institutions selling patient information to drug companies so they could directly market to them. In crafting privacy language so broadly, it ended up making medical providers worried about disclosing information to ANYONE without the right wording. And so it has become standard practice in hospitals, clinics and many doctor offices to not disclose medical information to anyone else without a validly executed Healthcare Power of Attorney.
While a Healthcare Power of Attorney is a comparatively simple document, it can mean everything to loved ones in a crisis. A client of mine told me about just such an emergency. About a year earlier, they asked to have their Simple Will Package put in place including a Healthcare Power of Attorney for each of them. Larry (or so I’ll call him) had gotten divorced years before and was now with Jessica, a widow. Each of them had their own children, but Larry was not on good terms with his daughter Melanie, who had believed all of the horrible things her mother told her about Larry, and especially about Jessica whom she blamed for the break-up of the marriage even though Larry and Jessica hadn’t met until six months after Larry moved out.
Well, stress, poor eating habits and no exercise had finally caught up with Larry, and he had a heart attack. Since Jessica wasn’t married to Larry, the hospital was not telling her anything. And then Melanie showed up at the hospital and started giving orders as the “next of kin.” (And most of the time she was ducking out of the hospital room to call her mother, Larry’s ex-wife, to ask what to do). She even had Jessica removed from Larry’s hospital room!
Fortunately, Jessica had the number for our firm programmed into her cell phone and called us in a panic. She told me just how helpless she felt and wanted to know if I could “get a court order or something.” I asked her about the Healthcare Power of Attorney, and she told me she didn’t have it with her. We were able to e-mail a signed copy of Larry’s Healthcare Power of Attorney to the hospital within a few minutes.
And then everything changed.
Suddenly, it was Jessica who was in charge, and Melanie was kicked out of the room. While Jessica didn’t take any satisfaction in making sure Melanie was out of the loop, she did happen to be going outside to her car to get something when she heard Melanie complaining to one of the hospital staff that “My Mom is going to be so mad about that witch being in charge.”
No worries about her father’s health. No voices of concern that he was getting the right medical treatment. Only that her mother was going to be upset that Jessica was making decisions. I did hear from Jessica a few days later that Larry was doing fine. He was expected to make a full recovery, and Jessica had already set up meetings with a nutritionist and personal trainer to make sure Larry’s first heart attack was his only one. Oh, and Larry had a few changes he wanted to make in his Will regarding Melanie.
While a Healthcare Power of Attorney may seem like a relatively minor part of the overall estate planning process in the midst of a medical crisis, particularly for partners, it can become the most important document ever signed.