HIPAA & Medical Powers of Attorney

The agent named in a springing medical power of attorney may have difficulty obtaining the medical information necessary for a determination of incapacity because of the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA).  HIPAA authorizes the release of medical information to a patient’s “personal representative.”  This term is defined in such a way as to include a health care agent.  However, the named agent has no authority until the patient is declared incompetent but the named agent cannot obtain the medical information necessary for a determination of incompetence until the agent has authority.

Some experts believe that the only way out of this Catch-22 situation is to have the client sign a separate authorization permitting medical information to be released to the agent regardless of the patient’s condition.

Other experts, on the other hand, are convinced that the HIPAA regulations are broad enough to permit the named agent to obtain the information necessary to determine if the agent’s authority is triggered.

If you elect to prepare a separate release for the principal to sign, you must make certain it complies with HIPAA and that it is in a separate document; HIPAA prohibits the authorization from being included in another document such as a medical power of attorney.

See Daniel B. Evans, What Estate Lawyers Need to Know About HIPAA and “Protected Health Information,” Prob. & Prop., July/Aug. 2004, at 20; Helen W. Gunnarsson, Are Statutory Health Care POAs HIPAA-Compliant?, 92 Ill. B.J. 302 (2004).

Here is a sample HIPAA authorization.