Many power of attorney and health care proxy documents that were created years ago should be revised now as a result of a federal medical privacy law. The law, known as HIPAA, generally prevents health care providers from disclosing your personal medical information to anyone other than you and someone you have named as your “personal representative.”
Medical privacy is a good thing, but the law can create complications. For instance, you may have a health care proxy that names someone you want to make medical decisions for you if you are not able to make them yourself. However, if you have not also named that person as your “personal representative” under HIPAA, then he or she might not be able to access your medical information in order to make informed decisions. In addition, many power of attorney documents say that your agent can act on your behalf if you become incapacitated. But if your agent isn’t also your personal representative under HIPAA, then even if you do become incapacitated, your agent might not be able to access your medical records in order to prove it, and as a result, the power of attorney might be of little value.
To make sure your agent does not get caught in this “catch-22” your power of attorney and health care proxy documents should contain HIPAA clauses saying that the agent is also your personal representative. It is also good to sign separate HIPAA release forms.
Here is another issue: When people are admitted to a hospital, the hospital often asks them to fill out a generic health care proxy form. Many people dutifully fill out this form as part of the hospital paperwork. But if you do so, it could revoke the more carefully considered form you created as part of your estate plan. You will want to be careful to make sure that the form you create as part of your estate plan is the most current form and the one on which the hospital will rely.
Ms. MacDonald’s practice is limited to Estate Planning, Probate, Conservatorships, Elder Law and Trust Administration. Ms. MacDonald maintains her practice in the Santa Clarita Valley at 25115 Avenue Stanford, Suite B-124, Valencia, California. She can be reached at 661-294-6464.