Thursday, April 09, 2009

HIPAA may call for updated power of attorney for caregivers or relatives


Some legal experts are suggesting that persons in eldercare situations consider whether their “Power of Attorney” documents and Medical Directives (if created and signed before 2003) are current enough to meet new requirements of HIPAA, the Health Insurance Portability and Accountability Act (text of law; Centers for Medicare and Medicaid Services site).

An entry in Feb. 2005 in the “Wills, Trusts & Estates Prof Blog” (here) discusses both sides of the controversy.

Some experts believe that a “named agent” does not have authority until a patient is declared incompetent, but the agent or representative (usually a relative) cannot get the information to get the determination of incompetence because of HIPAA privacy rules. So some attorneys believe that a separate document (or extended POA document) should give explicit consent to obtain the information.

In some cases, relatives (especially adult children) might not be able to get parents moved into nursing homes after medical catastrophes (such as strokes). Prior to HIPAA, doctors or hospital case managers could move patients into nursing homes after discharge without relative involvement; the new law could make this harder to manage and in some cases adult children could wind up having to move to provide care themselves, according to some references.

One possibility, absent a sufficient and “modern” post-HIPAA power of attorney, would be to go to court and seek legal guardianship, in some cases in some states.

An article by Steven Allen on “Ezine” explains this here.

In some states, however, legal experts say that these measures are unnecessary (despite the fact that HIPAA is federal, not just state, law).

I recall a telephone job interview for a systems development job regarding HIPAA in 2002 (for an April 1, 2003 implementation) and believe these requirements might have been at issue in the particular job position (with a PPO).

I would also be concerned about the legal status of childless relatives and caregivers in the future if the political climate were to move toward evidence of “generativity” as proof that the relative is trustworthy for guardianship. I discussed this on my main blog Sunday April 5.

Updated power of attorney documents can be more easily melded into trusts, that protect the elder’s assets from creditors of the children in cases where the children’s names are on bank accounts for “convenience”. Adult children should also know (by checking with financial institutions) whether they are (often without their knowledge) co-owners, accommodators, or have pay-on-death or transfer-on-death arrangements. Adult children living away from parents may not be aware of the need to do this.

Surprisingly the POA and trust issues have been little covered by the major media and don’t attract a lot of attention from politicians, even though lawyers know them well. Suze Orman, instead of doing another smackdown, why don’t you talk about this your next time on Oprah?

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