What are Advanced Directives? And Do I Need Them (Part III)


Part 1, Part 2

The "Other" Advanced Directives

Health Care Powers of Attorney and Living Wills aren’t the only Advanced Directives. In this installment we’re going to discuss Do Not Resuscitate Orders, HIPAA Waivers, and Declarations of Mental Health Treatment.

What is a Do Not Resuscitate Order?

A Do Not Resuscitate Order (or “DNR”) is an order stating that you do not want Cardiopulmonary Resuscitation (CPR) or Advanced Cardiac Life Support (ACLS) performed on you. If a DNR is in place and your heart stops, medical personal will not restart your heart under most circumstances. They also will not intubate (insert a breathing tube).

How is a DNR put in place?

Unlike the other documents we’ve discussed, a DNR is a not a document drafted by your attorney. It’s an order made at the hospital and included in your medical records. If you wish for a DNR to be put in your file, you’ll need to let hospital personnel know that is your wishes. 

Your Living Will specifies that if you’re terminally ill or permanently unconscious, a DNR should be issued, but the Living Will itself is not a DNR. Likewise, your Health Care Power of Attorney empowers your agent to ask that a DNR be issued, but is not a DNR itself.

What is a HIPAA Waiver?

A HIPAA Waiver is a document permitted individuals you name to access your health records. “HIPAA” comes from the federal medical records privacy law called the Health Insurance Portability and Accountability Act of 1996. That law requires medical care providers to keep health care records confidential except in limited circumstances. 

Do I need a HIPAA Waiver?

Most Health Care Powers of Attorney include a HIPAA Waiver, so you may be tempted to think that a standalone HIPAA waiver isn’t necessary. But recall that a Health Care Power of Attorney doesn’t work until you’re unable to make health care decisions for yourself. So if you’d like to allow someone to access your health records even if you’re still able to make decisions for yourself, a HIPAA waiver is a good thing to have.

For example, if you’re recovering from surgery and need your daughter, spouse or another person to pick up mediation from a pharmacy and speak with the pharmacist about your medical condition and the drugs they’re picking up for you, a HIPAA waiver will allow them to do that. Without it, the pharmacy will likely allow them to pick up your medication but will not discuss it with them, other than to give basic information to them.

What is a Declaration of Mental Health Treatment?

The State of Ohio allows for an additional advanced directive that is not as common as the others. A Declaration of Mental Health Treatment describes your preferences for mental health treatment and appoints someone to make mental health treatment decisions for you if you’re unable to make your wishes known.

Although a Health Care Power of Attorney does cover mental health treatment, it is a general document that doesn’t offer an opportunity to provide guidance on mental health issues.

Do I Need a Declaration of Mental Health Treatment?

If you have been diagnosed with a mental illness or believe you may end up in a circumstance where the declaration will be helpful, you should consider putting a Declaration of Mental Health Treatment in place. For instance, if you have received a dementia diagnosis or believe you may be at risk for Alzheimers or other dementia, you should speak with your estate planning attorney about putting a Declaration of Mental Health Treatment in place. 

How does a Declaration of Mental Health Treatment work if I have a Health Care Power of Attorney and Living Will?

Your Declaration of Mental Health Treatment overrides your Health Care Power of Attorney regarding mental health issues; however, your Living Will controls over your Declaration of Mental Health Treatment if you are terminally ill or permanently unconscious.

If this has created a need to learn more about Advanced Directives and if you need them, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at info@sovelaw.com or 937-985-1843.