Ohio law revised to allow greater access to medical information under a durable power of attorney for health care

The revisions in recently signed House Bill 126 allow an attorney-in-fact to have access to the principal’s medical information, if authorized by the principal, before the principal is incapable of making health care decisions. Generally, an attorney-in-fact’s authority under a Durable Power of Attorney for Health Care (DPAHC) is effective only after a physician determines the principal to lack the capacity to make informed health care decisions.

As revised, however, O.R.C. 1337.12 and 1337.13 state that a DPAHC may authorize the attorney-in-fact to have access to the principal’s medical information, including protected health information under the Health Insurance Portability and Accountability Act (HIPAA), commencing immediately upon execution of the DPAHC, and regardless of whether the principal is determined to lack capacity to make informed health care decisions. This grant of access to the principal’s medical information prior to incapacity must be expressly authorized in the DPAHC.

House Bill 126 also revises O.R.C. Chapter 1337 to allow a person executing a DPAHC to nominate a guardian of the principal’s person, estate or both, in the DPAHC instrument.

The revisions become effective March 19, 2014.