An important estate planning question that must be asked is, "Who makes decisions about your medical care if something happens to you?" This results from illness, injury, incapacity (such as dementia or Alzheimer's), or some other reason. If something happens, having the right legal documents in place might be a lifesaver. Simply writing down your wishes ahead of time may not be enough because you cannot anticipate every situation. You must select someone you trust to manage your care, instead of relying on a doctor, estranged relative, or even a judge, none of whom are likely to be aware of your preferences. In order to accomplish this, you need a Nevada health care power of attorney and an estate planning attorney can help.
In order to prepare comprehensive Nevada health care directives, you need three different health care documents: the Durable Power of Attorney for Health Care, a Living Will, and a HIPAA Authorization Form. The Durable Power of Attorney for Health Care allows you to select someone you trust to manage your health care when you are unable to do so. That person is your “agent.” The second document, the Living Will, allows you to specify in writing the type of medical treatment you agree to receive in certain situations. This includes end-of-life wishes for health care treatment (often referred to as your "pull-the-plug" directive). Finally, your HIPAA Authorization Form makes sure those people you want to be involved in this process will not be limited in discussing your private medical care with your physicians, nurses, or other health care providers.
The person you select to make your health care decisions is called your agent. It is common for people to name a spouse, partner, child, relative, or close friend as an agent. However, in Nevada your agent may not be:
These restrictions do not apply to your spouse, legal guardian, or next of kin, however. So if your spouse happens to be employed at a health care facility, the restriction would not apply. If you have questions about restrictions on a health care power of attorney, talk to one of our estate planning attorneys.
In order to create a legally valid power of attorney or living will, you must be considered “legally competent.” In this context, competency refers to mental capacity, age, and maturity. In order to enter a legally binding agreement, you must be at least 18 years of age. This requirement is based on the presumption that individuals who are still immature are too inexperienced to understand or properly execute a contract or legal document. Furthermore, if you have been diagnosed with Alzheimer's disease, dementia, or have any cognitive impairments, you may not create these legal documents without the written certification by your physician that you are of sound mind at the time of signing them.
In Nevada, you can authorize your health care agent to take over your medical care immediately upon execution of the document. Accordingly, there will be no need for a physician to determine whether you are incapacitated or not. Instead, you agent will have the ability to step in and make decisions on your behalf at anytime. As long as you are competent, you will still be able to dictate your own medical care. Regardless of when the document goes into effect, your health care agent is always required to act in your best interests and follow your health care wishes as you have expressed them.
If you have questions regarding powers of attorney or any other estate planning matters, please contact the experienced attorneys at Anderson, Dorn & Rader, Ltd. for a consultation. You can contact us either online or by calling us at (775) 823-9455. We are here to help!
In the event you become unable to make decisions about your own medical care, due to illness, injury, advanced age or some other reason, having the right legal documents in place can be a lifesaver. Simply writing down your wishes ahead of time may not be enough because you cannot anticipate every situation. You also need to select someone you trust to manage your care, instead of relying on a doctor, estranged relative, or even a judge, none of whom are likely to be aware of your preferences. Consider a medical power of attorney.
In order to accomplish a comprehensive medical power of attorney in Nevada, you need three different types of health care documents: the durable power of attorney for health care, a living will, and a HIPAA authorization form. The durable power of attorney for health care allows you to select someone you trust to manage your health care when you are unable to do so, based upon predetermined statements of your desires. That person you appoint is your “agent” for all medical decisions that need to be made during your incapacity. The second document, the living will, allows you to specify in writing the type of medical treatment you agree to receive (or not receive) in certain situations. This can include “do-not-resuscitate” orders and other living saving procedures. The HIPAA authorization form allows you to identify all people that you wish to receive your medical information that would otherwise be protected under HIPAA laws and regulations.
The person you select to make your health care decisions is called your agent. It is common for people to name a spouse, partner, relative, or close friend as an agent. However, in Nevada your agent may not be:
These restrictions do not apply to your spouse, legal guardian, or next of kin, however. So if your spouse happens to be employed at a health care facility, the restriction would not apply.
Despite the name, a living will is nothing like a conventional will (also commonly referred to as your "last will and testament"). It does not address the disposition of your property or assets upon your death; it only provides instructions regarding your health care preferences. It can be as general or specific as you want it to be, as long as it provides sufficient information to health care providers about your preferences. Generally, most living wills will be a directive to your physical to cease or not provide life-prolonging or life-sustaining treatment if the patient has a permanent, terminal, and irreversible condition that will cause the patient's death within a relatively short period of time. This can avoid the family arguing over whether you would have wanted them to "pull-the-plug" or not.
In order to create a legally valid power of attorney or living will, you must be considered “legally competent.” In this context, competency refers to mental capacity, age and maturity. In order to enter a legally binding agreement, you must have reached the age of majority established for your state. In Nevada, the age of majority is eighteen (18). This requirement is based on the presumption that individuals who are still immature are too inexperienced to understand or properly execute a contract or legal document.
A power of attorney for health care is typically drafted so that it goes into effect once a physician has determined you are incapacitated and unable to make your own health care decisions. Lacking capacity generally means that either you can no longer understand the nature and consequences of the health care choices that are available to you, and/or you are unable to communicate your own wishes for care, either orally, in writing, or through gestures. In other words, if you are so ill or injured that you cannot express your health care wishes, your power of attorney or living will spring into effect immediately. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it is time for your health care documents to become operative.
In Nevada, you can authorize your health care agent to take over your medical care immediately upon execution of the document, which is preferable since accidents can never be foreseen. In the event of something happening, there will be no need for a physician to determine whether you are incapacitated or not. Instead, you agent will have the ability to step in and make decisions on your behalf at any time. As long as you are competent, you will still be able to dictate your own medical care. Regardless of when the document goes into effect, your health care agent is always required to act in your best interests and follow your health care wishes as you have expressed them.
If you have questions regarding a medical power of attorney, or any other elder law issues, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455. If you are in the Reno, NV area, be sure to schedule an appointment to speak with us about a Reno power of attorney for your medical needs!
If you have a loved one who has become incapacitated in some way, and they need your assistance in handling their health care decisions, accessing medical records will become necessary at some point. In order to do so, you will need, at the very least, a power of attorney that authorizes you to make their health care decisions, as well as, provides access to their medical records.
Does a health care power of attorney allow access to medical records?
If you are the agent for a health care power of attorney, you have the right to access the medical records of the individual who executed the power of attorney, to the extent permitted by HIPAA. There may be certain exceptions, however.
How does HIPAA affect the authority of power of attorney for health care?
HIPAA, which stands for Health Insurance Portability and Accountability Act, provides for serious penalties if health care providers release any “Protected Health Information,” or unauthorized medical information typically contained in medical records, to anyone other than the person to whom the information belongs. HIPAA treats an adult or emancipated minor’s personal representative as the individual for purposes of the Rule. However, the scope of access to medical information depends on the authority granted by the power of attorney.
Can access to Protected Health Information be given to someone other than my health care agent?
Your estate plan should consider whether there is anyone else that you would like to give access to your Protected Health Information under HIPAA. Many times, family members who are not named as an agent under the health care power of attorney would like to be able to call the hospital to obtain information about your care. A properly drafted release form should be a part of your estate plan, under which anyone may be listed as an Authorized Recipient for health care disclosure under the Standards for Privacy of Individually Identifiable Health Care Information.
Do parents need a power of attorney to access their children’s medical records?
HIPAA, as a general rule, already allows a parent to have access to the medical records pertaining to his or her own children. Again, there are certain exceptions, which include the following:
- When the consent of the parent is not required under State or other applicable law;
- When the care has been authorized by a court or a person appointed by the court; and
- When the parent agrees that the minor and the health care provider may have a confidential relationship.
Even in these situations, a parent may still have access to the medical records of their children, when permitted by law. If you have questions, discuss your situation with your estate planning attorney.
Situations when access can nevertheless be denied
A physician or other health care provider can, in the exercise of professional judgment, refuse to honor the power of attorney if there is a reasonable belief that: (1) the person has been or may be subjected to domestic violence, abuse or neglect by the personal representative or agent; or (2) treating a person as the individual’s personal representative could endanger the individual, and doing so would not be in the best interests of the individual. These exceptions also apply to minors and the parent’s right to access medical records. Access can be denied if it is believed that the child has been or may be subjected to domestic violence, abuse or neglect, or that treating the parent as the child’s personal representative could endanger the child.
If you have questions regarding health care powers of attorney, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Under Nevada law, you have the right to make decisions regarding the use of life-sustaining treatment, as long as you are competent to do so.
Learn more about advanced directives in Nevada in this presentation.
By making your wishes known before something happens, you can help your loved ones feel more comfortable with how your medical treatment is handled and at decisions are made.
Topics in this report include:
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An agent is someone who is designated to manage the affairs of someone else. In a power of attorney, their authority usually extends to the management of finances or health care decisions. The person who creates the power of attorney and designates the agent is known as the “principal.”
Once an agent accepts the authority given to him or her under the power of attorney, a legally binding relationship is created between the agent and the principal. With that relationship and authority comes certain legal duties that must be adhered to. The role of an agent is entirely voluntary, but once an agent agrees to take on that role, the agent has agreed to the responsibilities that come with it.
What is an agent’s responsibility to the principal?
Being an agent under the authority of a power of attorney is a serious function and cannot be taken lightly. An agent is expected to act in good faith and with competence, care and diligence. An agent must avoid any conflicts that would prevent him or her from acting in the principal’s best interests.
An agent’s actions are governed by the authority granted in the power of attorney document, and based on the preferences of the principal. It is improper to override the desires of the principal in favor of the agent’s own preferences.
An agent is required to keep his or her own money and property separate and distinct from the property of the principal. Whenever an agent conducts financial transactions on behalf of the principal, the agent must use only the principal’s funds for the principal’s benefit. The agent is also expected to keep good records of all transactions, including receipts. An agent is required by law to provide an accounting to the principal whenever requested.
Differences between a general and limited power of attorney
Depending on the type of power of attorney, an agent’s authority may be limited. A general power of attorney provides very broad authority. For example, an agent may be given general authority to handle all financial matters or all health care decisions. A general power of attorney is commonly used to give an agent full authority to handle important decisions regarding the finances, real property, personal property and accounts of the principal. It can be valid immediately upon the execution of the document or the principal may specify that it is valid only in the event that the principal becomes incapacitated.
Whereas, a limited power of attorney normally provides more precise instructions for the agent or contains limitations on the scope of authority. If it is limited to a single transaction such as the sale of a piece of real property, once those duties have been completed or the goals accomplished, the powers are automatically revoked. A limited power of attorney may be put in place for a particular bank account and no other asset, so as long as the account is in place and the power of attorney has not been revoked, the agent may have access to that account.
Can an agent resign or be replaced?
Sometimes the power of attorney will describe how the agent can resign. If not, the agent may resign by simply giving notice to the principal. If the principal is incapacitated, the agent must give notice to the guardian or conservator (if one has been appointed). If there is a co-agent or successor agent, then notice would be given to that person, as well. A principal may remove an agent by giving notice to the agent in the same manner.
In the event none of those situations apply, an agent can resign by giving notice to the principal’s caregiver, to another person with sufficient interest in the welfare of the principal, or to a governmental agency with the authority to protect the principal. It is necessary for the principal, when an agent has resigned or has been removed, to notify any person or institution that has dealt with the agent. If a power of attorney has been recorded, it is necessary to record the revocation of the power, as well.
Powers of attorney can be highly technical documents and should be prepared by a qualified law firm to be certain of its legality. Many times a limited power of attorney is available from the institution requiring it such as as banks or title companies.
A living will is an advance directive for health care, along with a health care power of attorney, should be part of any comprehensive estate plan. It is important to plan ahead for the possibility of incapacity before passing away, but many people fail to do so.
Take a closer look at the different things you need to know about living wills in Nevada in this infographic.
A living will is an advance directive for health care, and, along with a health care power of attorney, should be part of any comprehensive estate plan. It is important to plan ahead for the possibility of incapacity before passing away, but many people fail to do so.
While it is not a pleasant subject, you should consider the period of time that will precede your death. During this interim there may be some medical decisions that have to be made and you may not be capable of making these decisions yourself.
This is why advance directives are important.
A living will is used to state your choices with regard to the use of artificial hydration and nutrition, ventilators, and other life-sustaining procedures when you are in a terminable condition.
Opinions vary widely about being kept alive indefinitely through the utilization of artificial means. You should state your own wishes in your living will. Your health care power of attorney will allow someone you have designated to act in your place to decide your level of care according to your express wishes.
When you do this you are doing what you can to ensure the outcome that you would prefer. You are also avoiding potential disagreements among family members who may have differing opinions about your wishes for the level of care you would prefer.
A reputable legal website recently conducted a survey that revealed some startling results. 61% of the adults who responded said that they didn't have a living will.
If you are among them you would do well to take action to put your advance health care directives in place as soon as possible. If you live in the Reno-Sparks area and you are unsure about how to proceed don't hesitate to contact our firm to request a free consultation.
Planning for the future sometimes involves considering uncomfortable topics such as mental or physical incapacity. To prepare for this eventuality you will need to select an individual who can handle your financial and medical affairs. If you have established a revocable living trust your successor trustee would be in a position to manage your assets in trust. A durable power of attorney would authorize the agent that you select to manage your assets that you own that are not in trust. The health care power of attorney is used to appoint an agent to make medical decisions in the event of your incapacity. The individual that you may want to see managing your financial affairs may not be the same person who you would like to make medical decisions in your behalf.
One thing to remember is the need to provide your health care agent with the authority to access your medical records. The medical community may not release medical information to anyone without your consent. This is accomplished by including a Health Insurance Portability and Accountability Act (HIPAA) release when you are executing your estate planning documents. To learn more about planning ahead for the possibility of incapacity get in touch with us for a free consultation. You can contact us by clicking this link: Reno Incapacity Planning Consultation
When someone mentions estate planning you probably think of wills and trusts , but it may be useful to look at the broader picture. We are all aware of the need to engage in retirement planning, and of course preparing for the distribution of your remaining assets to your loved ones after you pass away. But what about planning for the unexpected while you are still living?
Everyone wants to live a long and robust life, and indeed lifespans are expanding and people are living longer than ever. The fact is that the "oldest old," people 85 years old and older, are the fastest-growing segment of American society. So when you examine the data, it is becoming increasingly likely that you will live into your mid-80s and beyond. Though on the surface this can seem like a purely positive development, the reality is that incapacity is very common among people who reach such an advanced age and it must be planned for in advance.
To make sure that all of your bases are covered from a medical perspective estate planning attorneys will generally recommend the execution of advance directives. The two advance directives that are most widely utilized are the living will and the health care proxy. When you draw up a living will you instruct your physician as to your preferences with regard to potential medical procedures. The issue of whether or not you would want to be kept alive on artificial life support systems if your condition was deemed terminal is generally at the core of these documents.
A health care proxy is executed to name someone who can act as your agent and make medical decisions on your behalf if you become unable to do so due to incapacitation. Generally, medical professionals prefer to deal with the health care proxy, so a family member or close friend is making the final call, but if the proxy cannot be found, the physician can make the decision based upon the preferences expressed in your living will.