March 27, 2015
Ohio recently made some changes to its code provisions regarding health care power of attorney documents. A health care power of attorney (“HCPOA”) is a legal document whereby a principal designates an agent to make health care decisions on the principal’s behalf if the principal is unable to make such decisions due to incapacity. Having a HCPOA in place eliminates any confusion which may arise concerning who has the authority to make decisions about the principal’s health care in the event the principal is unable to make such decisions for him or herself.
Under the new HCPOA code provisions, a principal may now authorize his or her agent to obtain the principal’s personal health information, including information protected by the Health Insurance Portability and Accountability Act (“HIPAA”), immediately upon the principal’s execution of a HCPOA granting the agent such a right. Previously, an agent could only access a principal’s personal health information after a physician determined that the principal no longer had the mental capacity to make informed health care decisions. Under the new provisions, the principal can authorize the agent to have access to such information either immediately or upon the happening of some later event or date.
Additionally, the new code provisions now allow for a principal to nominate a guardian over their person, estate or both in a HCPOA. Finally, the new provisions eliminate the option of having anyone nominated as an alternate agent from also serving as a witness to the HCPOA’s execution. While this is a relatively minor change, it is important to follow this rule when executing a HCPOA to ensure its enforceability.
If you have already executed a HCPOA and would like to have it reviewed or revised to incorporate the new code provisions, or if you have questions about these recent changes, please contact one of RCO Law’s estate planning attorneys.