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A Few Thoughts on Medical Powers of Attorney and HIPAA Releases

As an elder law attorney, I almost always suggest that my estate planning clients include a HIPAA Release and Authorization (herein, HIPAA release) with their basic estate planning documents along with a will, financial and medical powers of attorney, and their directive to physicians and family. HIPAA refers to the Health Insurance Portability and Accountability Act which contains numerous medical privacy provisions. This post focuses on HIPAA releases and medical powers of attorney and how the HIPAA release complements the medical power of attorney.

As usual, a disclaimer: I am rendering no legal advice applicable to any particular case or person. The purpose of this post is to offer my thoughts for informational and educational purposes only.

Just to make sure that we are all on the same page, I want to describe briefly a few common features, provisions and purposes for medical powers of attorney and HIPAA releases. With a medical power of attorney, a person, the principal, names another person, the agent, authorizing the agent to make health care decisions for the principal IF the principal becomes temporarily or permanently unable to do so. The authority granted generally lasts for the life of the principal or until the principal revokes the power of attorney. A HIPAA release names a one or more agents who may access the principal's medical records, but the agent or agents cannot under any circumstances make decisions for the principal.

In my experience, people most commonly misunderstand the actual authority the power of attorney actually grants. First of all, the medical power of attorney does not put the agent in charge of making medical decisions for the principal UNLESS the principal is incapacitated. A second common misunderstanding relates to the first; the agent cannot use the power of attorney to force the principal to do something against his or her will. The agent cannot force the principal to take his or her medicine, follow a doctor's instructions about diet, enter a nursing home or treatment facility, etc. In other words, the principal still has the basic right to refuse medical care.

However, the right to refuse care invokes issues of capacity. One reason a person signs a medical power of attorney is to avoid having a court appoint a guardian to make decisions about the person's medical care and living arrangements, but if a person becomes a danger to his or her self or others because of diminished capacity, a court may appoint a guardian even if the person has executed a medical power of attorney.

While the agent under a medical power of attorney has no decision-making authority as long as the principal has capacity, the agent generally can access the principal's medical records and can speak with doctors, nurses, and other providers about the principal's medical care, but this access to medical information does not extend automatically to any backup agents that the principal might name on the power of attorney, family members or otherwise. I know of a case where the doctor came to a hospital room to speak with the family about the mother's condition, but would not speak to the daughters who were in the room because the father, who was the agent, had stepped out of room for a sandwich even though the daughters were alternants on the power of attorney. Nevertheless, I always recommend that the principal name at least one alternate agent.

In truth, health care providers may provide information to family or friends if they think it is in the patient's best interest, but many seem to take the safer route and provide information only to the current agent under the medical power of attorney. The principal may try to get around this by naming co-agents, but I strongly advise against that since agents may disagree, and a provider likely would prefer to deal with a single spokesman than a committee.

A HIPAA release often solves the problem. On the release the principal may name several agents at once including alternate agents on the medical power of attorney, family members who may have some level of diminished capacity, close friends, etc. Everyone named then has access to the principal's medical information. In the long term care context, if a skilled nursing resident has executed a HIPAA release naming several family members and friends, then all of the agents have the authority to review the person's chart each time they visit the principal to help monitor the principal's care.

I would like to point out that a HIPAA release must have an expiration date or expiration event to be effective, and the expiration date may be set after the principal's death. The form I use sets the expiration date at two years after the principal's death. Consequently, I do not include a HIPAA release in my medical power of attorney form since by law the power of attorney ceases upon death.

If you have not yet done so, you should consider consulting your local estate planning or elder law attorney to make sure you get the most out of your estate planning.

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