The Heritage Law Center, LLC Blog

Difference Between a Health Care Proxy and HIPAA Authorization

POSTED ON: May 9, 2023

Your health is one of the most important areas of your life. It’s essential to put a plan in place with a health care proxy and HIPAA Authorization to make sure you’ll receive the health care you want and need in the event you become unable to express your own medical decisions and want to keep certain loved ones informed about your medical care.

What is a Health Care Proxy?

A health care proxy allows you to choose another person, known as an agent or proxy, to legally make health care decisions for you if you can’t do so yourself. It doesn’t grant any powers to the health care agent until you’re actually unable to make or communicate health care decisions. Without a health care proxy in place, your loved ones may have to go to court to have a guardian named in order to direct your health care treatment, a process that takes time and costs money.

Why is a health care proxy so important? In Massachusetts, a spouse, the parents of an adult child, and adult children have no legal right to make health care decisions for you when you’re incapacitated (you no longer have the ability to understand and appreciate the consequences of your actions and to make rational decisions). In Massachusetts, a person can only make health care decisions for you when you’re incapacitated if they are legally your health care agent or guardian. Some health care providers may rely informally on family members to make decisions, but legally medical providers don’t have to follow those directions.

What is a HIPAA Authorization?

HIPAA stands for Health Insurance Portability and Accountability Act. The HIPAA Privacy Rule is a federal law that began being enforced in 2003. It introduced standards for the use and disclosure of your health information by your health care team (e.g., doctors, nurses, hospitals, laboratory technicians, etc.). If you want your protected health information shared with a third party for treatment purposes, you need to provide your authorization in writing using a HIPAA Authorization Form. By signing that form, you’re allowing your health care team to share information about things like your X-rays, laboratory and pathology reports, diagnoses, and other medical information with the person/entity you name on the form.

Key Point

Once you have a completed a health care proxy and HIPAA Authorization, you should keep the originals and provide copies to the people you named in the documents. You should also provide a copy of the documents to your health care providers and health care facilities where you get treated. The documents need to be part of your patient record, so they can be located when needed.

Family Example

Let’s say Janice has two adult children: Kailey and Jim. Janice named her adult daughter Kailey as her health care agent in her health care proxy document. Janice listed both Kailey and Jim on her HIPAA Authorization Form. Janice gave copies of the health care proxy and HIPAA Authorization to her doctors and the local hospital where she typically gets treated.

How the Health Care Proxy Works in This Family Situation

Joan is in a car accident and is rushed by ambulance to the local hospital. Kailey and Jim arrive to the hospital and are told their mom is unconscious. A decision needs to be made for immediate medical treatment for Joan. The doctor says that to give Joan the best chance at recovering, there are two options:

  1. A surgical procedure that needs to be done by a specialist at a hospital two hours away from family. It’s likely that recovery would be quicker, and she could completely recover.
  2. A more common surgical procedure that is less likely for Joan to experience complications can be done in the current hospital, but it would take Joan longer to recover and has less chance at full recovery than option #1.

Kailey is the person who needs to make the medical decision for her mom, with insight from the doctor. Kailey is thankful that she understands her mom’s current overall health, the medicines she takes, and that she had an extensive conversation with her mom about different scenarios and what her mom would medically want done for her in each case. Kailey, chooses option #1 and is sure that’s what her mom would want. Her mom is transferred, and Kailey gives a copy of her mom’s health care proxy and HIPAA Authorization to the nurse at this new hospital to be placed in mom’s hospital record.

How the HIPAA Authorization Works

After the surgery, Joan is recovering well and is sent home. At this point, she really needs help with health-related tasks like figuring out side effects from her medications, making follow-up doctors’ appointments, understanding what she should and shouldn’t do physically to maintain the good pace of her recovery. Remember, the health care proxy is only activated when Joan is incapacitated. Since Kailey and Jim both have the authority from the HIPAA Authorization, they can split these tasks, and both talk to doctors, nurses, and medical facilities to get the answers they need.

Living Will

There’s just one more legal document to help with health care. A living will, also known as an advance directive, outlines medical treatments you would and wouldn’t want to be used to keep you alive in the event of a terminal illness or injury. For example, you can make your preferences known about such medical treatment as feeding tubes, CPR, and ventilators.

Massachusetts is one of only three states that recognizes health care proxies but doesn’t recognize living wills. However, living wills are still useful because they offer guidance to your health care agent and medical staff about the types of choices you would make.

Taking Care of Yourself and Your Family

Planning ahead with estate planning isn’t only crucial for your physical well-being, but also for taking care of yourself and your family emotionally and financially. As an experienced Massachusetts estate planning attorney, I’ll work with you to create a comprehensive estate plan that meets your specific needs and includes the documents that will help express your wishes for health care. Contact us today to schedule a free, no-obligation consultation.