Medical Powers of Attorney (also known as “Durable Powers of Attorney for Healthcare”) enable you to appoint another person—who is referred to as a proxy or health care agent—to make all medical decisions for you when you no longer can.
Like Directives to Physicians (also known as “living wills”) Medical Powers of Attorney don’t apply until your health care team determines you’re unable to make your own medical decisions.
Medical Powers of Attorney are not valid unless they are notarized or, alternatively, signed in the presence of two competent adult witnesses. If witnesses are used to make a Medical Power of Attorney legally effective, the following people may not act as a witnesses:
(1) the person you have designated as your agent;
(2) a person related to you by blood or marriage;
(3) a person entitled to any part of your estate after your death under a will or codicil executed by you or by operation of law;
(4) your attending physician;
(5) an employee of your attending physician;
(6) an employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or
(7) a person who, at the time this power of attorney is executed, has a claim against any part of your estate after your death.
Most medical agents will be immediate family members who know you well enough to be familiar with the treatments you’d pursue. However, some people choose to appoint a more neutral party as they don’t wish to burden a family member with these decisions.
In any case, you should discuss your medical decisions and preferences with your agent while you’re still healthy and of sound mind.
The Importance of a HIPAA Release in a Medical Power of Attorney
For your Medical Power of Attorney to be effective, your agents may need to access your medical information. The Health Insurance Portability and Accountability Act (HIPAA) protects health care privacy and prevents disclosure of health care information to unauthorized people. HIPAA authorizes the release of medical information only to a patient’s “personal representative.” There are very severe penalties for physicians who provide your medical information to a third party without your authorization.
HIPAA can create a “Catch-22” if you have a “springing” Medical Power of Attorney. A springing Power of Attorney doesn’t become effective until you become incapacitated. This means your health care agent doesn’t have any authority until you are declared incompetent. However, under HIPAA, the agent won’t be able to get the medical information necessary to determine incompetence until the agent has authority.
To ensure your agent doesn’t get caught in this situation, your Medical Power of Attorney should contain a HIPAA Release stating that the agent is your personal representative for the purposes of health care disclosures under HIPAA.
Additionally, in many cases, HIPAA Releases are drafted as documents that are separate from the actual Medical Power of Attorney In other words, you will have one document (the Medical Power of Attorney) which allows your health care agent to make medical decisions for you, and a second document (the HIPAA Release) that allows your agent to access your medical information. Under these circumstances, the health care agent may arrive at the hospital with only the Medical Power of Attorney—not knowing they also need the HIPAA Release—and have no authority to access your medical information for the purpose of making the best decisions for you.
Get Professional Help with Your Medical Powers of Attorney in Texas
If you go online, you’ll find many generic forms for Medical Powers of Attorney, which appear easy to complete. However, an experienced attorney can save you some heartache with this critical document. An attorney also knows the state-specific laws and statutes governing Medical Powers of Attorney in Texas.
At Anderson Estate Planning, we’ve helped tens of thousands of clients in the Dallas-Fort Worth Metro Area, North Texas, and across the entire State of Texas execute their Medical Powers of Attorney and estate plans. Life is unpredictable, there’s no time like now to take care of these matters.Call us at Anderson Estate Planning today at (469) 207-1529 in McKinney, TX, for competent, compassionate legal help, and to ensure your Medical Power of Attorney contains a HIPAA Release that does not conflict with HIPAA laws.