If you created your estate plan more than a couple years ago, you may be missing a crucial piece to the puzzle. In the past, a power of attorney for health care decisions, which in California includes your advance directive (or living will), was sufficient to name another person (your “agent”) to make health care decisions on your behalf. But the enactment of HIPAA (Health Insurance Portability and Accountability Act), which was designed to limit the access to your medical records – and was focused on insurance companies – actually resulted in limiting the access to your medical records for everyone, including your agent on your health care power of attorney.
Worse, if you don’t have a health care power of attorney, you may think that your “next of kin” – your spouse, your children, or your parents – will have access to your medical information and to be able to make decisions on your behalf. Unfortunately, with HIPAA and the stricter privacy regulations on doctors and hospitals, this is not often the case. While you may be looked to for decision-making, if you want to see the medical records or tests results themselves, for example to get a second opinion, you won’t be able to, not even with a power of attorney.
What’s necessary now is called a “HIPAA Authorization,” which I have been using for a couple years now. It allows the individuals you designate to have access to your medical records and can save your loved ones from hassle and hardship should you be incapacitated. I use a separate form document, though my older health care powers of attorney included the HIPAA authorization in the body of the power of attorney.
I’ve talked already about the importance of everyone having a power of attorney once they turn 18, but what is also critically important is that you have all the correct documents in your estate plan as well, and a complete estate plan includes a HIPAA authorization.