Legal Question in Wills and Trusts in Ohio

Re: power of attorney

This comes out of the government website regarding HIPAA regulations:

"How can family members of a deceased individual obtain the deceased individual's protected health information that is relevant to their own health care?

Answer:

The HIPAA Privacy Rule recognizes that a deceased individual�s protected health information may be relevant to a family member�s health care. The Rule provides two ways for a surviving family member to obtain the protected health information of a deceased relative.

First, disclosures of protected health information for treatment purposes�even the treatment of another individual�do not require an authorization; thus, a covered entity may disclose a decedent�s protected health information, without authorization, to the health care provider who is treating the surviving relative.

Second, a covered entity must treat a deceased individual�s legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased individual or his estate, as a personal representative with respect to protected health information relevant to such representation.

Therefore, if it is within the scope of such personal representative�s authority under other law, the Rule permits the personal representative to obtain the information or provide the appropriate authorization for its disclosure."

Your son was not a minor when he died. He needed to have a personal representative, such as a power-of-attorney. You should be able to get access to the records if you open an estate and become an executor. I suggest consulting with an attorney.

Re: power of attorney

I am sorry to hear of your loss.

Power of attorney would have no relevance at all regarding the records of a deceased person, because the authority granted under a power of attorney is extinguished at the moment of death.

If a probate estate was opened for your son, the Executor or Administrator would have authority to obtain the records. If not, you should consult an experienced probate lawyer to find out if opening an estate would be advisable.

If you are concerned there may be a medical malpractice or wrongful death issue, I would advise you to immediately seek an attorney experienced in that area because there are relatively short statutes of limitation which might apply to those actions.

Best of luck with resolving your situation.