Florida Elder Law Blog - A blog by Elder Law Associates, South Florida's premier elder law attorneys, who handle elder law, medicaid planning, guardianships and much, much more.
A
power of attorney (POA) and a health care proxy are two of the most
important estate planning documents you can have, but in some instances
they may be useless if they don't comply with the federal privacy law.
A
POA allows someone you designate (your "agent" or "attorney-in-fact")
to make decisions for you if you become incapacitated. A health care
proxy specifies who will make medical decisions for you.
For
these documents to be effective, your agents may need to be able to
access your medical information. However, medical information is
private. 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 especially if you have a "springing" power of
attorney. A springing POA does not go into effect until you become
incapacitated. This means your agent doesn't have any authority until
you are declared incompetent, but, under HIPAA, the agent won't be able
to get the medical information necessary to determine incompetence until
the agent has authority.
Although
Florida no longer allows springing powers of attorney to be executed on
or after October 1, 2011, a springing power of attorney in existence
prior to October 1, 2011 is still valid in Florida.
To
make sure your agent doesn't get caught in this "Catch-22," your POA
and health care proxy 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.
Contact us to make sure your POA and health care proxy do not conflict with HIPAA. Labels: Elder Law Attorney, Florida Elder Care, florida elder law, Florida Elder Law Attorney, Florida Health Care Surrogates
