"The
Advance Health Care Directive and
the Requirements of HIPAA"
(Health Insurance Portability and Accountability Act of
1996)
By Robert P.
Bergman, Attorney at Law
If you have a durable power of attorney for health care and a "living will" that were prepared several years ago, they have both been superseded and replaced by the California Advance Health Care Directive. The Advance Health Care Directive combines the best features of both of the other legal documents, and makes sure that they are internally consistent with each other.
Although it is possible to pick up a "statutory form" Advance Health Care Directive at the local hospital, the form created by the California legislature has severe limitations. For example, even though it does, in fact, appoint a "Health Care Agent" for you who has authority to make medical and health care decisions for you if you become incapacitated, it is not designed to give many specific instructions on how you wish to have your care handled. The form has blank spaces to fill in your wishes, but does not offer any guidance at all as to what you should write about, or what decisions you may wish to have made for your care.
The Advance Health Care Directive also acts as a directive to your doctors if you no longer have a Health Care Agent who is alive, or is otherwise unable or unwilling to serve as your Health Care Agent. Unfortunately, unless there are specific directions or instructions that you have written in your Advance Health Care Directive, your attending doctors will not know what your wishes are, and they will be forced to continue offering medical care even if you would not want it!
An Advance Health Care Directive should be specially drafted for your particular needs, and it should provide great detail about your wishes and desires concerning your health care, living arrangements, care instructions, and other important matters.
Additionally, the medical privacy requirements of the HIPAA law now require that anyone seeking your personal, private medical information must be specifically authorized by you, in writing, to gain access to your medical information. This includes your spouse, your children, your successor trustees of your trust, and your health care agents named in an older Durable Power of Attorney for Health Care.
Even though your Health Care Agents under an Advance Health Care Directive are also authorized under HIPAA to get your medical information, you may have completely different people handling your finances. These people should also be named in a separate HIPAA Authorization Form.
If you have older durable powers of attorney for health care and no HIPAA authorizations, they should be updated.
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Law Offices of Robert
P. Bergman.
If you have questions or comments, you're invited to contact
attorney Bob Bergman
at rpb@lawbob.com or 408-247-0444.
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