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Incapacity Planning

What does "power of attorney" mean?

What is HIPAA and why should I have a HIPAA Release?

What is a Living Will?

Where can I get a Living Will or an Advance Directive?





Q: What does "power of attorney" mean?

Power of attorney is a phrase deriving from agency law, which is concerned with a person (the principal) granting another person (the agent) the authority to act on the principal’s behalf. The concept is important particularly in contract law, where the question is often posed: did an agent who signed a contract on behalf of a principal have the authority to bind the principal to the agreement. In estate planning, the term most often arises in two documents: the power of attorney for finances, and the power of attorney for health care, also known in Vermont as an Advance Directive.

In a power of attorney for finances, the principal names an agent to make financial decisions and take related actions on the principal’s behalf. Powers of attorney can be limited to specific actions such as signing closing documents for purchasing a house, or very broad in anticipation that the principal may become incapacitated due to old age or illness.

A power of attorney for health care allows the agent to make medical decisions on behalf of the principal, for instance if the principal is in an accident and can not express their health care wishes.

Both of these documents are important, and should be included in your overall estate plan.

See the articles: Schiavo Predicament Illustrates Need for Advance Directives and Updated Law Expands Advance Directive Options on the Articles Page.


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Q: What is HIPAA and why should I have a HIPAA Release?

The Health Insurance Portability and Accountability Act restricts release of your medical information to protect your privacy.  Although well intentioned, the law sometimes prevents family members and others from being able to access your medical information.  If you are unconscious and unable to express your desires on who should have access to your medical information, most hospitals and other institutions will err on the side of caution and not release your medical information, such as your medical condition, prognosis, even which hospital you are in. 

If you want certain people to have access to your medical information, such as family members or friends, you can complete a HIPAA Release, whereby you authorize medical institutions to release information to the people you have listed in the HIPAA Release. 

HIPAA releases are particularly important for college aged children, because when a child turns 18, in most cases a parent no longer has a right to the child's medical information. Yet, both the child and the parent would want to parent to know what's going on if the child has been injured or become ill while away at school. Similarly, elderly parents may wish to list their children on a HIPAA Release so that their children can be aware of their condition if they are admitted to a hospital.

See the article: Back to School with a HIPAA Release on the Articles Page.


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Q: What is a Living Will?

Living wills allow you to provide guidance on the types of health care you want or don’t want, and to name an agent to make health care decisions on behalf. In Vermont, living wills are known as advance directives.

You may wish to provide health care guidance in the event you are in a critical accident and thus unable to express your health care wishes to your doctors. In this section you can agree or disagree with statements where a general condition is contemplated, such as if death is imminent, would you nonetheless want extraordinary measures used to keep you alive, or if you are in a coma and the likelihood of recovering consciousness is small, do you want to be kept alive on artificial respiration and other measures. The guidance would be used by your doctors and your health care agent, if one is named, to decide on a course of medical treatment.

The Vermont advance directive also allows you to name someone to make health care decisions for you. On this form, the “principal” is the person who fills out the advance directive document, and the person who they name to make health care decisions for them is known as the “agent.” The agent is someone you designate to make health care decisions on your behalf if you are unable to do so.  This could occur if you are unconscious or are unable to understand the nature and consequences of your health care decisions.  The agent’s authority to make decisions on your behalf applies only when you lack the capacity to make your own decisions. If you subsequently regain the capacity to make your own decisions, the agent’s authority ceases.


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Q: Where can I get a Living Will or an Advance Directive?

If you live in Vermont, the Vermont Ethics Network has a website from which you can download the most popular Advance Directive forms in the state. If you live in a different state, you can visit the U.S. Living Will Registry to see if your state has a form available.


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