Many adults, particularly older adults, have a power of attorney in place so that a loved one can make decisions and act on their behalf in the event they lose the capacity to do so themselves. You might have a power of attorney for financial matters, so that if you became legally incapacitated, the agent you appointed could seamlessly step into shoes and conduct transactions on your behalf, making sure bills are paid, and so forth. You might also have a health care power of attorney, enabling a trusted person to make your health care decisions on your behalf. But can your agent get your health care information?
The intuitive answer would seem to be "yes." Otherwise, how could the person entrusted with making health care decisions on your behalf do so in an informed way? Without access to your health information, he or she might not even know what decisions needed to be made. Until a few years ago, there was a Catch-22 under Ohio law: a health care power of attorney didn't spring into effect until a principal's attending physician declared the principal legally incapacitated. But the agent, also called the attorney in fact, could not get this information until the power of attorney sprang into effect.
What this meant was that the attorney in fact was not legally entitled to information that the principal was legally incapacitated until the power was effective, but the power would not be effective until the attorney in fact had the information required to invoke it. This result was compelled by the Health Insurance Portability and Accountability Act (HIPAA) which was intended to protect patient privacy, but often had unintended effects such as these.
Ohio law has since been updated, to the benefit of principal (the person granting a power of attorney) and agent.
In 2014, Ohio Revised Code 1337.12(A) was revised to allow a principal to authorize an attorney in fact to "obtain information concerning the principal's health, including protected health information as defined (by federal law)." Contrary to previous law, the principal could give the attorney in fact access to this information at any time following the execution of the power of attorney, even if the principal was still in perfect health. Except as limited by other provisions in Ohio law, the authorization given by the principal could include the right to give informed consent, to refuse to give informed consent, or to withdraw informed consent for health care for the principal.
From a practical standpoint, this could come into play in a lot of ways. Let's say you have an elderly parent. He or she is not incapable of making health decisions, but would nonetheless like your input. Perhaps your parent is hard of hearing or visually impaired, and cannot fully absorb the medical information being conveyed to relay it to you. If your parent authorizes you, as attorney in fact, to receive the medical information, you can get it firsthand from the doctor and take the time to make sure your parent understands his or her diagnosis and treatment options, as well as evaluating those together.
The change in Ohio law meant that an attorney in fact would be treated as a "personal representative" of the patient for purposes of HIPAA. While the principal is certainly at liberty to sign a HIPAA authorization for the attorney in fact or anyone else, the updated law rendered this unnecessary. Considering how many separate physicians and medical practices many seniors deal with, the effect of the law should be to simplify medical record keeping and communication for principals and attorneys in fact.
In order for a health care power of attorney to be effective, it must be executed by a principal of sound mind and may designate any competent adult as attorney in fact. The principal's attending physician, the administrator of the principal's nursing home or an employee or administrator of a health care facility in which the principal is being treated may not serve as attorney in fact. (An exception is made for relatives and members of the principal's religious order).
The document must state the date of execution and must be signed at the end by the principal. It must be witnessed by either two eligible individuals or by a notary public. A durable power of attorney for health care does not expire, unless an expiration date is provided for in the document.
If you have questions about your health care power of attorney and whether you should designate your attorney in fact as a person eligible to receive your health care information, you should contact your estate planning attorney to make sure your document complies with your needs and with state law.
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