To address this issue of presently effective powers, I use a very specific clause in my clients’ Durable General Powers of Attorney, as well as in my Advance Directives for Health Care (“Living Wills”).
This clause addresses and satisfies both the Federal HIPAA laws and the Pennsylvania State Laws regarding Powers of Attorney and “Living Wills,” by specifically addressing – among other things – your Agent’s presently effective power and authority to make any and all health care decisions on behalf and your Agent’s ability to give informed consent for any and all health care decisions.
As stated previously, this article is limited to the impact that the HIPAA Privacy Rules have on General Durable Powers of Attorney that are presently effective.
In light of the fact that the determination of capacity is central to the effectiveness of a Power of Attorney (as well as to many other legal documents), the HIPAA Privacy Rules should not create problems for health care purposes if the Agent possesses the presently effective ability to make health care decisions on behalf of a Principal.
With a properly drafted Power of Attorney, if the Principal becomes incapacitated, the authority of the Agent is not interrupted.
Conversely, the authority of the Agent will be interrupted if the Power of Attorney is not presently effective and a determination of capacity is required to be made.
This situation exists, for example, when an Agent is to act under a Springing Power of Attorney or when a Successor Trustee is to act under a Trust Agreement.
As these scenarios are outside the realm of this article, I would suggest referring to the article, HIPAA-POA: The Effect on Healthcare Power of Attorney by Stephen H. Frishberg, Esquire.
This article is contained in the PBI Publication No. 2004-3355, 11th Annual Estate Law Institute.
Power of Attorney in a HIPAA WorldThis 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.