Health care privacy laws have created situations for many well-meaning people that become really annoying. If one spouse is ill and the other spouse is more than willing to take a ride to the doctor’s office to get a needed document, in many instances they cannot—even if the doctor or physician assistant knows them both.
It seems illogical that the person who is named as another person’s agent under an Advanced Care Directive (or Healthcare Power of Attorney) can’t take on these tasks, says the Monterey Herald in the article “Senior Advocate: Can my health care agent help me now?” After all, if they can make decisions for you when you’re incapacitated, why can’t they do something as simple as get a copy of your medical records for a second opinion?
However, the Advance Health Care Directive isn’t the document that gives someone access to all of your medical information. The Advance Health Care Directive is usually the document that gives your named agent the power to make decisions about end-of-life or life-saving decisions. It’s the document that is used if a decision must be made about taking a person off of a respirator or a heart machine.
If you want to give someone the ability to run health-related errands for you or speak with your healthcare providers, it is possible to have an Advanced Health Care Directive prepared, so it becomes immediately effective, regardless of your capacity. This can be used to give a spouse the ability to have access to all your medical records and information.
If you are ill and want to have your spouse involved in your medical care, even if you are not incapacitated, the “effective immediately” option will let your spouse act on your behalf. You won’t have to wait for a physician to state that you are incapacitated, before an Advanced Directive can take effect.
Since an Advance Directive usually names an alternate agent, you can have the document prepared so your spouse is able to be effective anytime, but the alternate agent can be limited to when your spouse is not able to help, and you are unable to speak for yourself because you have become incapacitated.
Keep in mind that the Advance Directive, whether effective immediately or only upon incapacity, has nothing to do with your finances. That requires a different document, or documents, depending upon your estate plan and your unique situation.
An estate planning attorney will be able to craft Power of Attorney documents for finances, trusts or other assets. All these documents should be prepared, while you are still competent to understand how the documents work and what powers they give to your spouse or another named agent.
Reference: Monterey Herald (Dec. 22, 2018) “Senior Advocate: Can my health care agent help me now?”