Wednesday, October 7, 2009

Do you Want HIPAA In Your DPOA's: Making Sense of the Alphabet Soup of Powers of Attorney

Recently we ran a poll about whether people should have HIPAA in their DPOA's. It wasn't a joke, but a little trick question. Here we will attempt to make sense of this alphabet soup and explore why you really do want HIPAA in your DPOA.

First, to take the acronyms away, the question would read, "Do you want HIPAA provisions in your Durable Powers of Attorney. To answer, let's start with some definitions.

DPOA: Durable Power of Attorney. A Power of Attorney which is "durable" is one which is valid after the maker becomes incapacitated. If the Power is not "durable" it is revoked as a matter of law by the maker's incapacity. A Durable Power of Attorney sets forth your choice of decision makers when you cannot speak for yourself.

There are two general types of Durable Powers of Attorney. One is for financial matters (paying bills, financial decisions, signing tax returns, etc.) The second is for health care matters such as what medical treatment should be provided to you when you cannot speak for yourself.

HIPAA: The Health Insurance Portability and Accountability Act. The part of this federal law we are concerned makes your health information private. What this law did was to require that all medical providers lock up your health information so it could only be provided to those persons you want to have it. Unfortunately, there are numerous unintended consequences to this laudable goal.

Did you know that your doctor is not permitted to speak to your spouse or other family member about your medical status or treatment unless you so specify in a HIPAA release? This is why you might have encountered HIPAA releases and privacy statements at your doctor's office. If you are thinking, "what a pain" or something similar you are right!

Here's a real life situation. A client had an 18 year old daughter playing lacrosse on her high school team. The girl was injured and taken to a local hospital. The people at the hospital refused to provide her mother with information about her condition because the girl had not signed a HIPAA release! Now, most right-thinking medical personnel ignore these rules and will speak with family members absent a HIPAA release. However, that did not occur for this mother.

After her daughter was released from the hospital, her mother brought her to our office for Durable Powers of Attorney with HIPAA provisions. That's because the federal regulations for HIPAA allow us to name a HIPAA Personal Representative in our Durable Powers of Attorney. By doing so, you solve the problems of who any medical facility and personnel can speak to about your care and medical bills.

So here is what you should know about these issues:

1. Any person over the age of 18 should sign a Durable Financial and Durable Health Care Power of Attorney.

2. Your Durable Powers of Attorney should have HIPAA provisions for the reasons discussed above.

In the words of the initial question: Yes, you do want HIPAA in your DPOA's.

Any questions? Let us know and we will be happy to respond.

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