A Different Perspective: Healthcare Power of Attorney

February 4, 2025

Sibling rivalry is a terrible thing. Fortunately, there was never any rivalry between myself and my sister: she easily won in both looks and brains. Dr. Jessi Clark is a third year resident and about to start a fellowship at UAB focusing on palliative care. So this week, in honor of her visit, I asked her a few questions about hospitals and medical powers of attorney. 

Q: What is something you wish people remembered to bring in when they are admitted to the hospital?

A: It’s great to have a copy of their power of attorney and a list of their medications. While we can get this info from their doctor’s office, a lot of people are admitted at night when those facilities are closed, so we cannot call to get the files. Even a handwritten list of medications that you keep in your wallet is beneficial.

Some facilities have an electronic medical records, or EMR, system, which can allow us to look up your records by your name and birthday at the hospital. However, because there are so many different brands of EMR and all clinics have not adopted using them, the hospital you are admitted to may not have the same one as your clinic, so those personal records are helpful.

Q: What is a HIPAA Release good for?

A: A HIPAA release allows an individual to access medical records. I had a patient in a coma, whose wife needed to access his records to send to a specialized clinic to see if they could help him. Because he had not signed anything in writing and was not awake to give consent, it caused some problems for her.

Q: What’s the difference between a healthcare power of attorney and a HIPAA Release? 

A: HIPAA allows an individual access to your health information, but no authority to make decisions about your treatment. Only a durable healthcare power of attorney is allowed to make choice for you.

Q: When do healthcare powers of attorney start making decisions for the principal (the person who signed the document)?

A: They typically only kick in upon a patient being declared incapacitated. Autonomy is one of the big principles we adhere to—the ability to make choices for oneself, regardless of if someone else might think the decision is good or bad. So one of first determinations to see if a healthcare power of attorney can make choices is to see if a patient has capacity to make a decision themselves.

Obviously someone who is unconscious cannot make their own decisions. However, having “capacity” is different than being conscious or able to talk. Generally, I look for if patients can understand the effects of treatment and explain how they understand it back to me. They don’t have to use big technical terms. Even if the patient says, “I know that if I do not get chemo, my cancer may get worse and I may die, but I don’t want to do chemo,” they still understand what is going on and have capacity, even if their loved ones may not agree with that decision. 

Q: When does a living will or advanced directive take effect?

A: Typically, we look to those when the patient is no longer awake and able to answer questions. However, in some instances a healthcare power of attorney can make decisions that may conflict with your living will. That is why it is so important to pick a healthcare power of attorney who understands your wishes and will stick to them.

A big thanks to Jessi for answering my questions. If you need to set up a healthcare document, Tree Ring Legal is happy to help. Consultations are free!