Release of Medical Records

Question: My mom recently came to live with me, can I get a copy of her medical records?

Answer: The Healthcare Insurance Portability and Accountability Act (“HIPAA”) is meant to protect your mom’s confidentiality and privacy regarding her health information.

You may only have access to your mom’s medical information if she gives you authorization.  While this can be done orally, most of the time the institution holding the information will want it in writing, a HIPAA waiver or release.  If your mom signs this waiver, she can list who the persons are that she authorizes to receive information regarding her medical records.  This document will include your mom’s date of birth and the name and address of anyone that she wants to have access to her medical records.  The waiver will be addressed to the institution from whom you want to receive the medical records.  This could be a hospital, doctor, insurance company, etc.

If your mom does not have capacity to sign a waiver form, you can receive her medical information if you are named as the agent on her health care proxy.  The health care proxy is a document that states who would make medical decisions if one was not able to make them for themselves.  In order for the health care proxy to be effective, the principal has to be determined to be incapacitated by a doctor.  Oftentimes, the health care proxy also gives the agent the right to make end of life medical decisions.  This includes giving and withdrawing various treatments.

It is important that the agent under the health care proxy be aware of the principal’s wishes regarding treatment so the agent can act on their behalf.  This can be done through a Living Will.  The Living Will is a document that states a person’s wishes regarding to end of life care and usually says that if they are in an irreversible state with no hope of recovery, then they do not want to continue life sustaining treatment.

If your mom loses capacity and does not have a health care proxy, it may be necessary for you to become the guardian of her person.  You can petition the Court, asking them to deem your mom incapacitated and name you as her guardian to make all medical decisions.  The Court can grant the authority for you to receive all of your mom’s medical records.

To avoid a guardianship situation, your mom should have these advance directives in place.  They are called advance directives because she is stating her preferences for her healthcare at a future date.  Beyond the documents, your mom should explain her wishes to you so that if she does lose capacity you can act in accordance with those wishes.

Britt Burner, Esq. and Nancy Burner, Esq.

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Burner Law Group, P.C.

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