Considerations for Durable Power of Attorney for Health Care

Randy Marvin Spiro

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Estate Planning Attorney

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Posted almost 5 years ago. 3 helpful votes

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1

Determine whether power waives principal's privacy rights under HIPPA.

HIPPA is a federal law pertaining to health care privacy rights. To comply with this law, a health power can waive the principal's privacy rights under HIPPA with respect to the designated agent.

2

Determine whether the power is effective immediately.

If the health power only becomes effective on the principal's incapacity, some doctors may not wish to honor it on the grounds that they do not wish to be the person determining whether or not the principal is sick enough to be legally incapacitated. By having the power be effective immediately, rather than having it spring into effect on the principal's incapacity, this problem can be minimized.

3

Determine whether the agent should be allowed to consider relief of suffering.

Many health powers contain a section that the principal can sign if he desires indicating that he wishes his agent to be able to consider relief of suffering in determining whether or not to disconnect life support.

4

Determine whether power complies with laws of principal's state of residence.

Each state has its own laws regarding durable powers of attorney for health care. The power needs to be compliant with the laws of the principal's state of residence. A state's medical association may have issued a health power which could be a relevant resource for the attorney preparing the health power.

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