Durable Power of Attorney and HIPAA

by John Stevens J.D.
Physicians may be unwilling to discuss your health care without a HIPAA waiver.

Physicians may be unwilling to discuss your health care without a HIPAA waiver.

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The federal Health Insurance Portability and Accountability Act of 1996, commonly known as "HIPAA," provides that a physician may not disclose a patient’s condition or the circumstances surrounding the patient’s care to a third party, with limited exceptions. This rule is designed to protect confidentiality; therefore, some doctors may be unwilling to share information about a patient's health, even if the patient designated an agent for health care under a durable power of attorney. As a result, your agent might be unable to act in your best interests. To guard against this possibility, include language in your durable power of attorney document that waives HIPAA confidentiality rights.

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Power of Attorney for Health Care

As it's name suggests, a power of attorney for health care allows the person you designate as your agent to carry out your decisions regarding health care in the event you cannot legally make those decisions for yourself. A power of attorney for health care often includes instructions concerning life support, burial, cremation, organ and tissue donation, and whether you elect to have certain medical procedures performed, such as CPR and kidney dialysis. The document may also provide the power to move you from one medical facility to another if your agent is not satisfied with the quality of care you are receiving.

Durability Feature

A general power of attorney gives your agent the power to act on your behalf as soon as you sign the document, but the agent loses that power upon your incapacity. Because a power of attorney for health care is designed to allow someone to make decisions for you upon your incapacity, it would serve no use to have the power to act on your behalf expire when your agent needs it most. Unlike with a traditional power of attorney, a durable power of attorney allows your agent to make decisions while you are incapacitated. It is for this reason that the power of attorney for health care is referred to as “durable.”

Physician’s Determinations

A power of attorney for health care document takes effect only upon the patient's incapacity. Once incapacity is determined, usually by a physician, the next step for the doctor is to form an opinion regarding the patient's physical condition. This opinion is of vital importance to your designated agent, who is charged with carrying out your wishes when you are unable to speak for yourself. For example, if you have instructed your agent to discontinue life support when there is no reasonable probability you will recover, your agent must know with certainty whether your physician believes that probability exists. But, under the confidentiality rules of HIPAA, your physician may not be allowed to share this information with your agent unless you included a HIPAA waiver in the power of attorney document.

HIPPA Waiver

To avoid the risk that your physician will be unwilling to provide your agent with information regarding your health care and medical condition due to the restraints of the federal HIPAA law, you should include language in your power of attorney for health care document that expressly waives the protection offered by HIPAA. The language of HIPAA refers to a “personal representative” rather than to an agent under a power of attorney, so it's best to use that language in your waiver. First, waive the right to confidentiality afforded to you by HIPAA, and also specify that you authorize your doctor to discuss your medical condition with your “personal representative.”