Pa Powers of Attorney are designed to allow an individual the ability to grant authority to another in order to allow the Pa Agent to act on behalf of the Pa Principal.
Pa Powers of Attorney can be drafted to be effective now (current powers) or effective in the future occurrence of a specific event (springing powers).
Pennsylvania law (20 Pa.C.S. § 5602(h) and (i)) allows the Pa Principal under the Pa Power of Attorney to grant the Pa Agent the power to authorize “my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care and the power to authorize medical and surgical procedures.”
While Pa Powers of Attorney can be drafted to provide for a wide variety of situations, this article is limited to the impact that the Privacy Rules have on General Durable Powers of Attorney that are presently effective.
Pa Powers of Attorney – HIPAA – Authority
If a Pa Power of Attorney grants the Pa Agent the present ability to make health care decisions on behalf of the Pa Principal, the Pa Agent qualifies as the Personal Representative under the HIPAA Privacy Rules.
However, if a Pa Power of Attorney does not grant the Pa Agent the present ability to make health care decisions on behalf of the Pa Principal to the Pa Agent, the Pa Agent is not considered the Personal Representative under the HIPAA Privacy Rules, regardless of the scope of the health and medical authority otherwise granted to the Pa Agent.
In order to be effective under HIPAA, the specific authority granted to the Personal Representative (Pa Agent) under the state defined Pa Power of Attorney rules thus must be consistent with the definition of Personal Representative under the federally defined HIPAA Privacy Rules.
Under the Privacy Rules, a Pa Power of Attorney that is intended to allow the Personal Representative (Pa Agent) the power to access medical records, to authorize information disclosures, and to Participate in medical decisions on behalf of the Principal, but not drafted to allow the Personal Representative (Agent) the presently effective power to make health care decisions on behalf of the Pa Principal, may be technically deficient, and the Pa Agent may lack the critical necessary powers to act on behalf of the Pa Principal in time of need.
Although some health care professionals may rely upon a Pa Power of Attorney that is not drafted to comply with the Privacy Rules, they do so at their own peril.
• • •
This article, which I published on the Martindale-Hubbel website in Spring of 2008 (with a few minor changes) is still relevant today. You can also review this article in the series of posts that have been – and will be – published in this blog.
• • •