Durable Power of Attorney and HIPAA

By Cindy DeRuyter, J.D.

Durable Power of Attorney and HIPAA

By Cindy DeRuyter, J.D.

Creating a durable power of attorney for healthcare—also called a healthcare directive or living will—gives your named agent the authority to make medical decisions and carry out your wishes when you cannot speak for yourself. However, your agent's ability to get medical information from your doctors and other providers may be limited unless your healthcare directive specifically includes language waiving your confidentiality rights under the Health Insurance Portability and Accountability Act (HIPAA). Waiving these rights authorizes your providers to share information with your designated personal representative.

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Common Provisions in Durable Healthcare Powers of Attorney

A general power of attorney, also known as a POA, expires upon its author's incapacitation, but a durable POA only expires if you include a condition or date of expiration, revoke it, or pass away. This is necessary for most powers of attorney because their purpose is establishing a trusted agent who can speak for you when you cannot make your own wishes for medical care known.

You can include other instructions and wishes in your healthcare directive, including wishes about certain types of health care procedures, location of care, organ donation, disposition of your remains, and more. Directives also commonly include instructions about end-of-life care and comfort.

Understanding HIPAA Privacy Requirements

Under HIPAA rules, doctors and other providers must safeguard patients' protected health information. Protected health information includes information about patients' past, present, or future physical or mental conditions, payments for health care, and services received or proposed.

Providers who violate HIPAA's privacy requirements face hefty fines and potential criminal liability. Because of this, medical professionals are understandably cautious about how they safeguard and share patients' protected health information. When a doctor or other professional is dealing with an authorized healthcare agent under a patient's valid directive, the doctor may err on the side of caution and only share information when the healthcare directive specifically permits such disclosure.

HIPAA defines a personal representative as someone who has legal authority to make medical decisions for a patient. To make sure the healthcare agent named in your durable healthcare power of attorney can get medical information from your doctors and other providers, the healthcare directive should specifically designate your agent as your personal representative for purposes of HIPAA rules.

Waiving Privilege and Granting Authorization to Share Protected Information

To limit the risk of your doctor refusing to share information with your healthcare agent, your directive should also include language waiving medical privilege in favor of your medical agent.

When your directive identifies your agent as your HIPAA personal representative and affirmatively authorizes your agent to receive, review, obtain copies of medical records, and consent to disclosure of such information, your medical professionals won't need to worry about inadvertently violating HIPAA rules.

It's crucial to have your medical power of attorney or other advance directive include HIPAA authorization language. To update or create a durable POA, you may want to consider contacting a licensed attorney in your state.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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