How to Protect Your Healthcare Wishes During the COVID-19 Pandemic

With many people in isolation due to COVID-19, and those that are deemed “essential employees” being put at risk, you may wonder how you can create legal documents regarding your health care and best protect yourself and your family with proper “social distancing.” You may be surprised to find out that you can execute healthcare estate planning documents now while maintaining social distancing and without needing the formality of a notary. What are these healthcare documents and why are they so important at a time like this?

First is a New Hampshire Advanced Directive, which allows you to appoint an agent to handle medical decisions should you be incapacitated and unable to communicate on your own or are unable to make medical decisions. It is a two part document comprising of (1) a Durable Power of Attorney for Health Care in which you (the “principal”) appoint an agent to handle your medical decisions while honoring what you would want if you had capacity to make the decisions and (2) a “Living Will”, by which you may authorize two physicians or a physician and nurse practitioner to make end-of-life decisions.

These do not kick in unless a physician determines that you do not have the capacity to make health care decisions or to communicate. Once the Durable Power of Attorney for Health Care has been activated, your agent takes over and makes decisions that you have authorized your agent to make.

It is important to have a Durable Power of Attorney for Health Care in place because the general rule is that physicians and nurses must treat unless told otherwise. There may be situations in which you would not want to be kept alive. An agent, if authorized, may agree to a “Do Not Resuscitate” Order. If the patient is near death or in a persistent vegetative state, an agent may, if authorized, decline artificial feeding and hydration, can make decisions not to start medical treatment or, if it has been started, to discontinue it. Your agent will have all of the powers that you have to make medical decisions, including continuing care, if that is appropriate.

The “Living Will” is a separate part of the Advance Directive. It allows you to authorize two physicians, or one physician and a nurse practitioner, to make end-of-life decisions for you. You may like having this option; it is like an additional backup, in case the agents that you name cannot make decisions for you. Or, you may decline to execute the Living Will, preferring instead to leave your health care decisions to the agents you appoint. Either choice is fine, but taking steps to execute at least one part of this document is important.

A statute, effective January 1, 2014, made minor changes to the Advance Directive form. If you do not have an Advance Directive, or if you have not updated your Health Care Advance Directive within the past six years, you should consider executing the updated form.

The second important document is a HIPAA Release, named after the 1996 Health Insurance Portability and Accountability Act, which allows you to name people that you trust with your health information to talk with healthcare providers, even before the Advanced Directive kicks in. If you are in the hospital and want family members or trusted friends to be able to find out how you are doing, sometimes the hospital may require those people to be named in your HIPAA Release before disclosing information about your medical condition. A HIPAA Release will protect your health information from disclosure to people that you do not want to have it. It also enables the people you name to be able to help with follow-up care, appointments, etc.

Now, you may be wondering how to execute these healthcare documents while taking precautions in the middle of the COVID-19 pandemic. The New Hampshire Advanced Directive can be executed without a notary and with just two disinterested witnesses, meaning two people that are not named in the document to act as your health care agents. Those two witnesses can watch you sign the New Hampshire Advance Directive, and then sign themselves, at least six-feet-apart with proper sanitization measures in place to limit exposure.  Our practice during the pandemic is to have clients sign in the comfort of their car while we watch them sign through the windows and then our witnesses sanitize their hands and sign the documents outside, or, if inclement weather, sign across from each other while wearing masks at a large, disinfected conference table.

The HIPAA Release does not require witnesses or a notary to sign. If you have to go to a hospital or doctor’s office, you can fill out and sign the “in-house” HIPAA Releases there. Many hospitals and medical practices make their HIPAA “Authorizations” available directly on their websites to fill out and return by mail or fax, and others may enable you to download their HIPAA Release form through a “Patient Portal”.

With proper social distancing and proper sanitization, you can protect your healthcare wishes during this uncertain time with an Advanced Directive and HIPAA Release.

By Elaina Hoeppner, Esq. and Katherine B. Miller, Esq.