How medical information access affects incapacity planning
Key takeaway
Medical information access depends on the recipient's authority and its scope. In Minnesota, for example, an agent acting under a health care directive has the principal's medical record access rights unless the directive specifies otherwise, and other states differ.
Start with three questions: Who is requesting information, who is designated to determine incapacity, and what event makes the power of attorney effective? Read the relevant provisions together before discussing them with your adviser.
Medical record access follows the representative's authority
Under federal HIPAA rules, a covered entity must treat a person with applicable legal authority to make health care decisions for an adult or emancipated minor as that individual's personal representative for information relevant to the representation.
A family relationship alone is not the authority described by this rule. A covered entity may decline representative treatment when it reasonably believes abuse, neglect, or endangerment is involved and professionally determines that representation is not in the individual's best interests.
Except for disclosures under the HIPAA family and caregiver disclosure provision, a covered entity must verify a requester's identity and access authority when either is unknown. It must also obtain any documentation, statements, or representations required as a disclosure condition.
Information access does not itself promise an incapacity certificate. The HIPAA access provision addresses maintained information, rather than requiring a clinician to perform a new assessment or create a certificate.
A designated incapacity determiner can have a specific access role
In West Virginia, a principal may name one or more people in a power of attorney to determine, in writing or another record, that a future event or contingency has occurred.
A person authorized in that document to determine incapacity may act as the principal's HIPAA personal representative to obtain health information and communicate with providers. That designated role does not automatically belong to every relative, financial agent, or successor trustee.
When reviewing your documents, identify the named determiner separately from the person who will exercise financial powers. Ask your adviser to explain the wording that connects information access with the determination.
Fallback determinations depend on the state and document
In Delaware, a principal may designate one or more people in a personal power of attorney to record that a future event or contingency has occurred.
For a Delaware personal power of attorney effective upon incapacity, a physician, the Court of Chancery, or another competent court may record the determination if no determiner was authorized or authorized determiners cannot or will not act.
A determiner designated by the principal in that personal power of attorney may act as HIPAA personal representative to access health information and communicate with providers.
In Nevada, a principal may likewise designate one or more people in the power of attorney to record a triggering event determination.
For a Nevada power effective upon incapacity, the fallback applies if no determiner was authorized or the authorized person cannot or will not act. An advanced practice registered nurse, physician, psychiatrist, or licensed psychologist may then record the determination.
Nevada also permits the principal's designated incapacity determiner to act as HIPAA personal representative to obtain an incapacity determination. That is a purpose limited role, rather than unrestricted authority over medical information.
Tennessee provides limited access before general authority begins
Tennessee's amending act addresses a power of attorney under its specified financial agency provisions whose general effectiveness is deferred until disability or incapacity.
Despite contrary document language, the designated agent has limited authority at signing to access medical records and personnel and discuss the principal's health to determine whether general authority has become effective.
This limited access does not immediately activate all financial powers. The cited source is the amending act, rather than a consolidated current code.
Two related terms
Springing power of attorney: In Nevada, this describes a power whose effectiveness depends on a specified future date, event, or contingency. Nevada's ordinary rule is effectiveness upon execution unless the principal specifies otherwise.
Health care proxy: In Minnesota, for example, a health care agent is an individual age 18 or older appointed by the principal to make health care decisions on the principal's behalf. Other states differ.
Common questions
Can a family member determine incapacity for a power of attorney?
Yes, if the family member is authorized to make that determination under the applicable document and state rule. Delaware, West Virginia, and Nevada allow the principal to designate one or more people in the power of attorney to record a triggering event determination.
Family status does not prevent that designation. The state examples above explain the designated roles and the Delaware and Nevada fallback conditions.
Does medical information access require a clinician to create an incapacity certificate?
No. The HIPAA access provision concerns maintained information, rather than requiring a new assessment or incapacity certificate.
For a document review, ask your adviser to identify the evidence required by the particular activation provision.
Sources
- Minnesota Statutes §145C.08: Medical record rights of an agent acting under a health care directive.
- Minnesota Statutes §145C.01: Health care agent definition.
- 45 CFR §164.502(g): Personal representatives, scope, and protective exceptions.
- 45 CFR §164.514(h): Verification of identity and authority, required documentation, and the §164.510 exception.
- 45 CFR §164.524: Access to maintained protected health information.
- Delaware Code, Title 12, §49A-109: Personal power of attorney effectiveness, designated determiners, and fallback determinations.
- West Virginia Code §39B-1-109: Triggering event determinations and designated determiner information access.
- Nevada Revised Statutes §162A.260: Effectiveness, designated determiners, fallback professionals, and determination access.
- Tennessee Public Chapter 8, §10: Amending act providing limited medical access at signing under a deferred power of attorney.