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Medical Power of Attorney vs Power of Attorney

Beaver Dam, WI |

My mother is currently in a nursing home and my sister has a current POA issued by an Attorney. Some of the nurses are saying she needs a "Medical POA" and some say she doesn't need one. My question is...can they legally be disclosing information about my mom to my sister over the phone, just because she says she is a daughter of the person in question? Shouldn't my sister have to provide proof of a "medical POA"?? Is this violating any sort of HIPPA laws?

Attorney Answers 4

  1. The issue is whether your mom has capacity and whether she is authorizing the disclosure. Is your mom competent so that she can execute a power of attorney? If you have real issues with what is going on, you need to contact a local elder law attorney.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

  2. Challenging situation, I agree with Charles that you should speak with an attorney.

    Very briefly, not all powers of attorney are the same:
    (a) A General Power of Attorney provides broad powers to deal with an individual's assets and administrative matters.
    (b) A Healthcare or Medical Power of Attorney grants authority to make medical decisions.
    (c) If a power of attorney is "durable" it is effective even during times of "incompetence" (when someone cannot make decisions for themselves).
    (d) If a power of attorney only grants authority during times of disability, then it may not be effective until the triggering event or certification of disability occurs.

    As you mention, under Health Insurance Portability and Accountability Act "HIPPA" (Pub.L. 104–191, enacted in 1996), disclosing and discussing medical information is subject to restrictions and protections imposed by HIPPA. With the passage of that law, additional authorizations and powers are required for inclusion in the power of attorney.

    It may be that the power of attorney your sister has contains all of the proper authorizations and powers. Consulting with an experienced Elder Law attorney will be the best way to help you resolve your questions and concerns.

    Disclaimer: My answer is provided without all relevant facts, let alone your unique objectives. No attorney-client relationship is hereby created as a consequence and you should not take (or not take) any action based on my answer. I highly recommend that you consult with competent legal counsel before deciding to take or not take any action, as every situation is more complex than it appears.

  3. Capacity will definitely be the key issue here. Sit down with an Elder Law attorney in Wisconsin to discuss and chart a good course ahead. See under Find-A-Lawyer.

  4. In Wisconsin, the document you are referring to is a Power of Attorney for Health Care. In general, the person who is named as your health care agent has the right to access those medical records that are relevant to making health care decisions on your behalf. However, this right only applies while the Power of Attorney for Health Care is actually in force. Typically, a Power of Attorney for Health Care is activated upon a determination by two physicians, or one physician and one psychologist, who have personally examined you that you have become incapacitated. Therefore, and pursuant to HIPAA laws, until a certification of incapacity has been issued, your health care agent should not have access to your medical records.

    I have included a link to Wisconsin's advance directive forms, as provided by the Department of Health Services website, and a pamphlet from CWAG (Coalition of Wisconsin Aging Groups) regarding powers of attorney for health care. However, in your situation, I would advise you to consult with a Wisconsin estate planning attorney as soon as possible in order to ensure all issues surrounding your mother and her estate are covered.

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