Whether you are presently traversing the estate planning process as a Pennsylvania (PA) resident or already have, make Sure Your financial and medical Power of Attorney
complies with Federal privacy law. POA documents created for PA residents must comply with the Federal HIPPA rules.
Typically, our office will prepare two separate power of attorney documents for clients, one for financial matters and one for medical care. These two documents are among the most important estate planning documents you can have. They will help your Agent handle all of the financial and medical decision making should you be unable to do so. Unfortunately, the documents can be rendered useless if they don’t comply with the federal privacy law (HIPPA).
As many know, the power of attorney document allows someone you designate, known as your Agent or attorney-in-fact, to make decisions for you if you if you choose to allow them to act on your behalf or if you become incapacitated. The health care power of attorney document specifies who will make medical decisions for you when you are unable to communicate your own wishes. The Medical Agent might act for you following an accident or other emergency or at some time in the future when you are unable to properly communicate with your medical professionals.
For these documents to be effective, your agents may need to be able to access your medical information. However, medical information is protected under HIPPA provisions. 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.”
HIPAA can be a problem for the Agent trying to obtain medical records. Further, the Agent might not even be able to obtain the document under certain circumstances. For example, we are often asked to keep the POA documents for our clients in a safe fire proof location at our office. If the client cannot tell us to distribute the POA document, we cannot release the POA to the Agent. We have our client sign a HIPPA authorization allowing us to talk to their physician and allowing their physician to release medical information to us. Absent that HIPPA authorization, we could not get the necessary information from the physician.
To make sure your Agent is not put in a position of information deficit, your financial and medical POA documents 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. This will serve to accelerate the Agent’s ability to help you if an when the need arises.
Make sure your Power of Attorney documents are up to date and HIPPA compliant. I cannot stess enough how important this is and how important the POA documents can be for assisting you in times of need.
Please call Douglas L. Kaune at 610 933 8069 or email him at 610 933 8069 to review your power of attorney or other related estate planning questions. Please also Check out our most recent Elder Law Reports available for free by clicking here.
