Many older powers of attorney should be reviewed
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 but you and someone you’ve 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’re not able to make them yourself. But if you haven’t 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.
Also, 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 doesn’t 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.
In some cases, it might also be a good idea to sign separate HIPAA release forms.
Here’s another issue: When people are admitted to a hospital, the hospital often asks them to fill out a generic health care proxy form. A lot of 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’ll 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.