Physicians Certificate of Medical Exam- Why would a physician complete this without permission of patient? Elder Law

Asked over 1 year ago - Colleyville, TX

It has been suggested by a hospital social services person to ask my dad's physician to complete the above form to obtain guardianship after probate is completed as he is in at least our lay opinion, no longer able to handle his financial or medical affairs since the passing or my mom. Would not the above form violate HIPPA and certainly my dad would not want such a form being done on him regardless as he still believes he can do it all? I thought a doc could only complete one of these with the permission of patient (not likely) or somehow compelled by a court. Seems to be an almost impossible task. Thanks

Attorney answers (2)

  1. John Greuner

    Contributor Level 8

    2

    Lawyers agree

    1

    Best Answer
    chosen by asker

    Answered . The short answer to your question is because the doctor is trying to help. He probably feels that HIPAA provides exceptions for disclosures for use in guardianship proceedings, which it does. However, the exceptions are technically stringent and difficult to comply with unless a court order is in place. Even if the doctor is technically in violation of HIPAA regulations, he may have a defense from liability, or receive the most minimal punishment, if it turns out that the guardianship was actually necessary for the patient. In my experience, doctors routinely fill out these forms for guardianship in north Texas, and I can't recall any instances where they sought the patient's permission in advance. It appears to be an unenforced rule. But that doesn't mean the patient (or the patient's guardian) can't sue for the violation.

    This discussion does not create an attorney-client relationship. You may not rely on this information as a... more
  2. Lawrence A Friedman

    Contributor Level 18

    1

    Lawyer agrees

    1

    Answered . Depends on local court rules and procedures but a physician report regarding potential guardianship may be shielded by HIPAA litigation exception.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law... more

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

26,454 answers this week

2,941 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

26,454 answers this week

2,941 attorneys answering