A power of attorney may seem like a simple document, but there are several important decisions that need to be made when crea...Read more
Make Sure Your Power of Attorney Complies with Federal Privacy Law
- October 14th, 2011
A power of attorney (POA) and a health care proxy are two of the most important estate planning documents you can have, but in some instances they may be useless if they don't comply with the federal privacy law.
A POA allows someone you designate (your "agent" or "attorney-in-fact") to make decisions for you if you become incapacitated. A health care proxy specifies who will make medical decisions for you. For these documents to be effective, your agents may need to be able to access your medical information. However, medical information is private. The Health Insurance Portability and Accountability Act (HIPAA) protects health care privacy and prevents disclosure of health care information to unauthorized people. HIPAA authorizes the release of medical information only to a patient's "personal representative."
Local Elder Law Attorneys in Ashburn, VA
Margaret A. O'Reilly, PC
Margaret A. O’Reilly is an estate planning and elder law attorney with over thirty-five years of legal experience. Attorney O’Reilly graduated from Duke University with a degree in psychology, and received her law degree from Northeastern University School of Law in Boston, Massachusetts. For over 15 y...
Hammond and Associates, LLC, Elder Law, Estate Planning, Wills, Trusts, Probate
For Jeffrey Hammond, the practice of Elder Law is personal. Jeff’s many years of experience in law and in business did not prepare him for the crisis he faced in 2005 and 2006 when his father suffered a stroke and both of his parents suffered from dementia and other medical problems. At that time, Jeff began an i...
Law Offices of John L. Laster
John Laster is a lawyer licensed to practice in Virginia, Maryland and the District of Columbia. He limits his practice to wealth transfer planning, trusts, wills, powers of attorney, health care decision-making issues, estate administration and related tax, elder law and disability concerns. Listed in The Best Lawyers...
HIPAA can be a problem especially if you have a "springing" power of attorney. A springing POA doesn't go into effect until you become incapacitated. This means your agent doesn't have any authority until you are declared incompetent, but, under HIPAA, the agent won't be able to get the medical information necessary to determine incompetence until the agent has authority.
To make sure your agent doesn't get caught in this "Catch-22", your POA and health care proxy should contain a HIPAA clause that explains that the agent is also the personal representative for the purposes of health care disclosures under HIPAA. You should also sign separate HIPAA release forms that explain what medical information can be disclosed, who can make the disclosure, and to whom the disclosure can be made.
Contact your elder law attorney to make sure your POA and health care proxy do not conflict with HIPAA.
Last Modified: 10/14/2011