Florida Estate Planning Lawyer Blog

As a Jacksonville Estate Planning Attorney, I wanted to share with you and your family an important planning idea on he use of Powers of Attorney and Health Care Surrogate forms for college students and adult family members that are under 30 years of age. These documents are recommended because of the higher standards of patient privacy that hospitals and physicians are now being held to under the Health Insurance Portability and Accountability Act (“HIPAA”). Because of this, medical providers, family doctors, and health care centers are often unable to provide medical information to anyone without the authority of the patient.

Section 1177 of HIPAA imposes strict penalties on anyone who violates the law by providing a patient’s individually identifiable health information to another person, even a parent or spouse. Specifically, the law states as follows:

(a) OFFENSE — A person who knowingly and in violation of this part–

(1) uses or causes to be used a unique health identifier;
(2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information t another person, shall be punished as provided in subsection (b)

(b) PENALTIES. — A person described in subsection (a) shall–

(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;
(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and (3) if the offense is committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.

According to Section 1171, “individually identifiable health information” means any information, including demographic information collected from an individual that:

(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provisions of health care to an individual; and

(i) identifies the individual; or (ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.

Because of the harsh penalties, many health care providers may be unwilling to disclose a patient’s information to anyone else, even that patient’s spouse or parents. Once a child turns 18, the natural parents no longer have authority over their child’s financial or medical decisions. In fact, when distressed parents and family members of some of the students at Virginia Tech tried to discover information about their children, medical providers were unable to release information without the proper release form. Thus, I am preparing Durable Powers of Attorney and Designations of Health Care Surrogate for many clients who have children who are 18 or older. Typically, we designate the parents as their Attorneys-in-fact and Surrogates to make financial decisions and health care decisions should they not be able to do so themselves. In addition, I ask their children whether they want to execute Living Wills. Each of our clients typically executes these documents for themselves, but in the past, many have not executed them for their adult children.
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