When preparing an estate plan, we recommend that clients execute both a Health Care Proxy and an Authorization for Release of Protected Health Information (a “HIPAA Authorization”). While there is some overlap between the two, it is important to understand the purpose of each document and how and when they can be used.
Example
Joan has appointed her daughter Susan as her health care agent in her Health Care Proxy. Joan also wants to give access to her medical records to her daughter Donna. She has listed both daughters on her HIPAA Authorization document.
Health Care Proxy
The Health Care Proxy allows Joan to name someone to make healthcare decisions on her behalf if she is incapacitated or unable to make those decisions for herself. In this case, she has appointed Susan. Joan’s agent (Susan) should have a good understanding of her wishes with respect to medical care, including a general snapshot of Joan’s overall health, any medicines she is taking, and her values when it comes to health-related decisions.
A Health Care Proxy includes the authorization to receive patient records and any other medical information that would otherwise be protected under the Health Insurance Portability and Accountability Act (HIPAA), a federal law that limits health care providers and insurance companies from sharing patients’ health care information with third parties.
Remember, however, that a Health Care Proxy must be “activated” before it becomes effective!
Where the HIPAA Authorization comes in
Joan is still competent to make her own decisions. However, she would like Susan and Donna to assist her with health-related tasks, such as asking about possible side effects to medication and coordinating appointments. Because the Health Care Proxy is not activated until Joan is incapacitated or unable to make her own healthcare decisions, Susan requires the authority from the HIPAA Authorization document to do so.
This is where a HIPAA Authorization is especially important—it will allow Susan and Donna to access protected medical information and to speak freely on Joan’s behalf with health care providers, even if a Health Care Proxy has not been activated.
When the Health Care Proxy is activated and Susan is making decisions on Joan’s behalf, Donna can communicate with Joan’s medical team about her care, condition, and treatment because Donna is listed in Joan’s HIPAA Authorization. Donna will not be able to make decisions on Joan’s behalf – that is Susan’s role as Joan’s agent.
Together, a Health Care Proxy and a HIPPA Authorization ensure that you have an agent to speak on your behalf when you are unable to do so and a well-informed support system in place to help you navigate your healthcare needs.
Founded by a nurse attorney and with offices in Acton, Burlington, and Sudbury, Massachusetts, Generations Law Group has been helping families for over 20 years navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.
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