HIPAA Release as part of Estate Plan in case of Emergency

Powers of attorney are part of a well considered estate plan.  Powers of attorney, both “general” powers of attorney and health care powers of attorney, help the principal (the person who signs the powers of attorney and extends his/her authority to someone else) prepare for a time when the principal might not be able to handle his/her own affairs.  The principal might have an accident of some sort leaving him/her unconscious, or the principal might suffer from dementia late in life.  In any such instance, powers of attorney can put someone in the position to speak for the principal and make decisions when the principal can’t.

A comprehensive estate plan should also include a blanket HIPAA release.  HIPAA, the Health Insurance Portability and Accountability Act of 1996 created the health information privacy requirements for providers of health care services.  HIPAA’s privacy rules prohibit health care providers from sharing patients’ private health information with anyone whom the patient has not authorized to receive such information.

Now, the agent appointed in the principal’s health care power of attorney is generally considered to be authorized to receive the principal’s private health information when the principal is deemed not able to handle his/her own affairs.  That makes sense.  We wouldn’t want a health care agent making health care decisions without knowing the principal’s health care situation.  That would be dangerous.

Some people believe that the health care agent doesn’t have the right to receive the principal’s private health information until the principal cannot speak for himself/herself.  That situation concerns me.  What if, as in my example above, the principal is unable to speak for himself/herself because of a car accident or for some other sudden reason?  That principal needs health care decisions made in an emergency.  Now, of course, emergency medical providers will provider the medical care necessary to deal with the emergency.  However, what if the principal has some non-obvious medical condition that the emergency personnel need to know?  If the agent has not been able to receive the principal’s health information, then no one might be able to warn the emergency personnel about the principal’s unusual condition.

Of course, the agent might not be available in an emergency situation because the emergency personnel will probably not be able to look for the agent (or even a health care power of attorney document) while trying to attend to the principal’s emergency.  Health care professionals won’t withhold emergency treatment while looking for the health care agent.  Emergencies don’t usually lend themselves to waiting for legal niceties.

In the aftermath of the emergency, though, medical providers will want permission from the principal or the health care agent to provide follow-on care.  This follow-on care will not be “emergency,” but it may be pressing.  Because of whatever created the need for emergency care (like a fall, an accident, or a stroke, for example,) the principal may not be able to make a decision or may not be able to communicate his/her decision on health care matters.  As a result, the agent may need to make these decisions and, in some circumstances, may need to make these health care decisions quickly.  When time is of the essence in a health care setting, I’d hate for the principal’s care to wait while the agent learns for the first time about the principal’s potentially complicated health conditions.

So, I prefer that the principal have thought ahead about the possibility of such an emergency.  I prefer that the principal have created a broad HIPAA release to allow the sharing of health information to the agent and the successor agents named in the principal’s health care power of attorney.

In addition, the principal might want to include others that might be involved with the agent at the time the principal needs care, such as the family attorney or an elder law attorney, or a member of the clergy.

Comments are closed.