If you’ve had legal documents drafted in Massachusetts pertaining to your health, financial, and long-term care wishes, you should have them reviewed and revised now! Massachusetts laws relating to powers of attorney and health care proxies have recently changed. This along with federal medical privacy laws can affect your already-created documents.
The federal law, known as the Health Insurance Portability and Accountability Act (HIPAA), generally prevents health care providers from disclosing your personal medical information to anyone other than you and someone you’ve named as your “personal representative.” Frequently you will sign medical releases at your physician’s office allowing them to communicate with any specialists you are seeing, like a podiatrist or a cardiologist. Protecting your medical privacy is very important but the law can create some complications.
Madelyn executed a Health Care Proxy that names her daughter, Stella, to make medical decisions when/if she is unable to make them herself. Unfortunately, her Health Care Proxy doesn’t include a HIPAA provision due to poor planning. Madelyn develops dementia and Stella feels that the doctor may be overlooking an undiagnosed mental illness. This is in addition to Madelyn’s cardiac issues. Since Stella isn’t the “personal representative” under HIPAA regulations, she has had a lot of difficulty speaking with her mom’s doctors and accessing written medical information. She is frustrated because she can’t make the best health decisions for her.
Madelyn also executed a Durable Power of Attorney which also named Stella to make her financial decisions if she would be unable to make them in the future. But, again, the document did not name Stella as her HIPAA “personal representative.” Stella cannot access Madelyn’s medical information and cannot prove to Madelyn’s financial institutions that she is indeed incapacitated. As a result the Power of Attorney document is of little value and may force Stella to seek out a costly Conservatorship in probate court.
To make sure your chosen agent(s) do not get caught up in this conundrum, your Power of Attorney and Health Care Proxy documents should contain HIPAA clauses. It is also highly recommended, and has long been the practice of this office, to sign separate HIPAA release forms.
Lacking HIPAA provisions isn’t the only reason why Health Care Proxy and/or Power of Attorney documents fail. Did you know that recent Massachusetts laws directly affect the way these documents should be drafted to be fully complete? Also easy to overlook items like lacking specific powers, or not having the document executed properly, can leave your family in a tough situation where they have to go to court to get the power you intended to grant them in the first place.
If you are concerned that your Health Care Proxy and/or Power of Attorney documents are lacking, please contact us to make sure they are complete and comply with the new laws.