Power of Attorney and Deceased Individuals

There have been numerous questions regarding deceased individuals and their rights to their protected health information. The following will answer those questions.

Q. Is a power of attorney still effective after a patient's death? I was told that a woman whose husband died was not allowed to get a copy of his medical record. She had his power of attorney, but the physician's office told her that the power of attorney died with him. Is that true?

A. A power of attorney is only effective while the individual is living. When an individual dies, his or her legal representative is the executor of the individual's estate, if one was named in the individual's will. If there is no executor, state law generally establishes a priority order for next of kin who may manage the patient's estate. Usually, this includes the decedent's spouse (if married at the time of death), adult children, parents, the decedent's adult brothers or sisters, and nieces or nephews, if there are no closer relatives.

A person who has been legally designated to represent a patient is also referred to as a "personal representative" of the patient. This means that such a personal representative would be treated as if they were the individual having all rights of access to the deceased person's protected health information. The keyword is "legally" designated. Even if the person requesting the information is the "next of kin", it still must be legally documented and in accordance with your state law.