The Basics: “HIPAA” Powers

This is the third in a three-part series of articles on Powers of Attorney.

The first article examined the Financial Power of Attorney. The second article examined the Healthcare Power of Attorney and Advance Directive. This third article in the series focuses on a “HIPAA” Power of Attorney. These three documents are the keystone in even the most basic estate plan.

Earlier in the series, we saw that a Power of Attorney is a document by which you appoint someone as your “Agent” to act on your behalf. If that Agent is unwilling or unable to act, the document can appoint one or more successor Agents.

But what is a “HIPAA” Power? First, “HIPAA” is the Health Insurance Portability and Authorization Act of 1996. That Act brought about many things, including enhanced privacy in your health records. While HIPAA protections are a great addition to the law, they can thwart people who have a legitimate need to access your records, unless you give them the appropriate authorization. A “HIPAA” Power, otherwise known as a “HIPAA” Authorization, allows designated people to access your protected health information.

Why do you need to give others access? Without access, others may not even know that you were brought to the hospital, are in the intensive care unit, or your condition and needs.

Who would you authorize to access your protected health information? Typically, you’d grant access to your Agents under your Healthcare Power of Attorney and your Financial Power of Attorney. This allows those Agents access to information about your condition. For example, the Agent under the Healthcare Power of Attorney would require this information to make prudent decisions for your benefit. Similarly, the Trustee or Successor Trustee under your Trust should also have access for similar reasons.

Let’s look at an example:

Mary was 75 years old. Mary was at lunch with a friend and they were in an accident on the way home. They were taken to the hospital. Mary’s friend suffered only minor injuries, but Mary was in a coma from her injuries. Mary’s friend alerted Mary’s family. Mary’s family encountered problems when they tried to find information about Mary’s condition. With a HIPAA Power, Mary’s family would be able to discuss Mary’s condition and prognosis with her healthcare providers and see her records.

Without the HIPAA Power, Mary’s family may not be able to learn of her condition. Her Successor Trustee under her Trust wouldn’t know that she was incapacitated and that the Successor Trustee was called upon to step up to serve. Similarly, the Agent under her Financial Power of Attorney wouldn’t know that Mary was incapacitated and that the Agent was called upon to serve.

With the HIPAA Power granting authorization to her Agent under the Healthcare Power of Attorney, her Agent under the Financial Power of Attorney, her Successor Trustee of her Trust, and designated family members, she can rest assured that those upon whom she relies can have the information they need to make decisions for her in her time of need.

If you are sending you "baby" off to college, they should be armed with the most basic estate plan including a HIPPA release. Youngsters who've turned 18 are now legal adults are subject to HIPAA in their own right.

If you still need convincing, consider this:

Joan, a 19 year old coed, is in her sophomore year in college. One night, while driving home, Joan is in a car accident. Her parents are notified but the hospital refuses to release any additional information about her condition. The parents are unable to get information about her for 2 days until they are able to arrive, in person, at the hospital.

For two days, the parents were without vital information about their daughters' condition.

While our children will always be our babies, once they turn 18 they are adults under the law. Before we send them out into the world, we must arm them with the proper protections, just in case.

Make sure you have laid the foundation for even the most basic estate plan: A Financial Power of Attorney, a Healthcare Power of Attorney (and Advance Directive), a HIPPA Power (or Authorization) and a basic Will.