A comprehensive estate plan should include a Durable Power of Attorney, a Health Care Directive, and a blanket HIPAA release. HIPAA, the Health Insurance Portability and Accountability Act of 1996 created the health information privacy requirements for providers of health care services. HIPAA's privacy rules prohibit health care providers from sharing patients' private health information with anyone whom the patient has not authorized to receive such information.
A Health Care Directive appoints an Agent, and often alternative agents, to make decisions for the Principal. The Principal is the person granting the decision-making powers to an Agent. The Agent appointed in the Health Care Directive is generally considered to be authorized to receive the principal's private health information when the Principal is deemed not able to handle his/her own affairs. That makes sense. We wouldn't want your Agent making decisions without knowing the Principal's health care situation. That would be dangerous.
Some people believe that the Agent doesn't have the right to receive the Principal's private health information until the Principal cannot speak for himself/herself. What would happen if the Principal is unable to speak for himself/herself because of a car accident or for some other sudden reason? That Principal needs health care decisions made in an emergency. Of course, emergency medical providers will provide the medical care necessary to deal with the emergency, but if the Principal has some non-obvious medical condition that the emergency personnel need to know? If the agent has not been able to receive the Principal's health information, then no one might be able to warn the emergency personnel about the Principal's condition.
Your Agent might not be available in an emergency situation because the emergency personnel will probably not be able to look for the Agent (or even a Health Care Directive) while trying to attend to the Principal's emergency. Health care professionals won't withhold emergency treatment while looking for the Agent. That said, in the aftermath of the emergency, medical providers will want permission from the Principal or the Agent to provide follow-up care. This follow-up care will not be "emergency," but it may be pressing. Because of whatever created the need for emergency care (like a fall, an accident, or a stroke, for example,) the Principal may not be able to make a decision or may not be able to communicate his/her decision on health care matters. As a result, the Agent may need to make these decisions and, in some circumstances, may need to make these health care decisions quickly. When time is of the essence in a health care setting, the Principal's care should not be put on hold while the Agent learns for the first time about the Principal's potentially complicated health conditions.
Think ahead about the possibility of such an emergency. Would you prefer to create a broad HIPAA release to allow the sharing of health information to your Agent and the alternative agents named in the Health Care Directive? It may be important to include additional family members, or close friends, that might be involved with and assisting the Agent at the time the Principal needs care.
Will you be able to help your college-age child in a medical emergency? HIPAA Privacy Rule can get in your way
Don't get stuck in an information vacuum if your son or daughter ends up in the ER.
Early one October morning, Sheri E. Warsh, a mother of three from Highland Park, Ill., stepped out of the shower to a ringing phone. On the other end, her 18-year-old son’s college roommate delivered terrifying news: Her son—270 miles away at the University of Michigan—was being rushed by ambulance to a nearby emergency room with severe, unrelenting chest pain. “I was scared out of my mind, imagining the worst,” Warsh said.
In a panic, she called the ER for details. What she got instead was a rebuff from the nurse. “She asked me how old my son was, and when I said 18, she told me I had no right to talk to the doctor,” Warsh said.
Was the nurse acting within her scope by shutting out the anxious mom? In fact, she was. The ER chose not to disclose the son’s medical condition due to the Privacy Rule of the Health Insurance Portability and Accountability Act, or HIPAA.
“Once a child turns 18, the child is legally a stranger to you,” said Jane F. Wolk, a trusts and estates attorney practicing in New York and New Jersey, referring to the legal age in almost all states (in a few it's older). “You, as a parent, have no more right to obtain medical information on your legal-age son or daughter than you would to obtain information about a stranger on the street.” And that is true even if the young-adult child is covered under the parents’ health insurance, and even if the parents are paying the bill.
A medical provider can chose to disclose protected health information to a family member, even without the patient's authorization, if, in her professional judgment, it serves the best interest of the patient. But providers often come down on the side of patient privacy, particularly if they have never met the family member.
In this case, Warsh’s son didn’t intend to keep his parents in the dark. In the midst of cardiac-care chaos, he was in too much pain to give authorization. But a simple, signed legal document (or two, in some states) would have smoothed the way.
“Nobody is talking about this, even after I went to so many college meetings and orientations,” Warsh said. The irony of her story is that Warsh is an attorney specializing in the practice of trusts and estates as a partner at a Chicago law firm. “Now in my practice I have made it my goal to educate parents on what they need to do,” she said.
Moms and dads who still think of themselves as protectors and advisers, even after their children become legal adults, often don’t consider the real-world implications of that milestone birthday. They and their young-adult children need to think about the unthinkable in advance. Three forms—HIPAA authorization, medical power of attorney, and durabe power of attorney—will help facilitate the involvement of a parent or other trusted adult in a medical emergency.
If a student attends college out of state, fill out the forms relevant to the home state and school state to avoid any challenges. If the school has its own form, sign that one too, Warsh said. “When the doctor or medical institution sees it, you want them to be familiar with it and recognize it,” she said.
Once the forms are completed, it’s a good idea to scan and save them so that they are readily available on a smart phone or home computer.
You don’t need a lawyer to do this. Many websites have downloadable forms. But a lawyer’s involvement can benefit in making sure you are using the right form, explaining it, and advocating on your behalf in case something goes wrong.
Thinking about the unthinkable: 3 forms that help
A signed HIPAA authorization is like a permission slip. It permits health-care providers to disclose your health information to anyone you specify. A stand-alone HIPAA authorization (not incorporated into a broader legal document) does not have to be notarized or witnessed. This document alone, signed in advance by her son, would have sufficed for Warsh to get information from the hospital treating her 18-year-old son. Young people who want parents to be involved in a medical emergency, but fear disclosure of sensitive information, need not worry; HIPAA authorization does not have to be all-encompassing. They can stipulate not to disclose information about sex, drugs, mental health, or other details they might want to keep private.
Medical power of attorney
In signing a medical POA you appoint an “agent” to make medical decisions on your behalf in case you are incapacitated and cannot make such decisions for yourself. Each state has different laws governing medical POA and, therefore, different legal forms. In many states, the HIPAA authorization is rolled into the standard medical POA form. Whether the medical POA requires the signature of a witness or notary varies state by state.
For the sake of clarifying often-used terms: A medical POA sometimes goes by other names, such as health-care power of attorney, designation of health-care proxy, or durable power of attorney for health care. It is one type of advance directive. The other type is a living will, which specifies your wishes with regard to interventions in life-or-death scenarios in case you are unable to do so. In many states, the language for the living will is also incorporated into a hybrid document that includes the medical POA and HIPAA release.
Durable power of attorney
As an additional step, young-adult children might consider appointing a durable power of attorney, enabling a parent or other designated agent to take care of business on the student’s behalf. If the student were to become incapacitated or if the student were studying abroad, the durable power of attorney would be able to, for example, sign tax returns, access bank accounts, and pay bills. Durable POA forms vary by state. In some states the medical POA can be included in the durable POA form. “The durable power of attorney is sweeping,” Wolk said. “You do not want to give it to someone who you do not trust.”
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Original Source: http://www.consumerreports.org/cro/news/2014/08/will-you-be-able-to-help-your-college-age-child-in-a-health-emergency/index.htm#