If you’re caring for a person who’s enrolled in Medicare, you may not realize you can’t make medical decisions for your loved one without legal authorization, such as a durable power of attorney. A durable power of attorney (or other advance directive such as a health-care proxy) is a legal document that authorizes you to act on behalf of your loved one in certain situations.
The person granting the power of attorney is known as the principal (in this case, your loved one). The person receiving the power of attorney is generally referred to as an agent or “attorney-in-fact” and is usually a spouse, child, sibling, or trusted friend.
There are several types of power of attorney, with the key difference between them being when legal authority begins and ends.
For a caregiver of a Medicare beneficiary, the durable power of attorney may be the most useful type, since it remains in effect even after your loved one becomes mentally incapacitated. There may be fewer potential disputes over whether it has gone into effect, which can happen with a springing power of attorney. A conventional power of attorney can also be limited, since your legal authority ends when your loved one becomes incapacitated–and that’s often precisely when medical or financial decisions for that person need to be made.
Of course, with regard to the durable power of attorney, it’s important that the agent be someone the principal trusts completely. The power of attorney ends with the principal’s death, unless that person decides to cancel it before then.
For purposes of Medicare, you need legal authorization anytime you’re acting on behalf of a beneficiary. For example, you can’t enroll another person in Medicare, even your spouse, unless you have power of attorney, health-care proxy or other authorization to make such decisions for the beneficiary. You also can’t enroll him or her in a Medicare Advantage plan without such authorization.
Your loved one can decide the range of responsibilities to give you as the agent. Depending on the state, a power of attorney may grant broad authority to handle finances, sell real estate, and make charitable donations–or it can be limited to medical decisions.
To help a Medicare beneficiary, the power of attorney or other advance directive needs to grant the agent the ability to make health-care decisions for the principal. If the person being cared for becomes incapacitated, a durable medical power of attorney or other advance directive will generally allow the agent to make decisions on his or her behalf, including actions related to Medicare.
When creating a durable power of attorney, the principal signing the document must be mentally competent. As a general rule, it’s best to begin these discussions about power of attorney early, while the principal is still healthy and able to clearly express his or her wishes.
If the person you’re caring for is disabled or has a progressive condition, like Alzheimer’s disease, it’s even more important to begin this process as soon as possible. If you think the mental capacity of your loved one might be challenged later, you may want to get a doctor to verify and provide a statement. Depending on the state, witnesses may also need to be present at the signing.
After a power of attorney has been created, multiple copies should be made and stored safely.
The process and laws for creating a power of attorney vary from state to state. You may want to consult with a lawyer to ensure the power of attorney meets your state’s legal requirements.
If you need more information on creating a durable power of attorney, contact your State Health Insurance Assistance Program (SHIP), which offers free counseling on Medicare and health-related issues.
Medicare also has privacy protections that limit access of medical information to people other than the beneficiary.
If you’re caring for a person who’s enrolled in Medicare, it’s useful to have that person fill out a written form authorizing Medicare to disclose health information to you. This Authorization to Disclose Personal Health Information form can be found on Medicare.gov. You may need to provide documentation showing that you have durable power of attorney or other authorization.
For further information, you can contact Medicare at 1-800-MEDICARE (1-800-633-4227), 24 hours a day, seven days a week. TTY users can dial 1-877-486-2048.
This article is for informational purposes only. It should not be construed as legal advice. You should consult a lawyer to make sure your specific legal needs are met in your specific circumstances.
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